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LOUIS PATRICK GRAY III
^3^^—
HEARINGS
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
NINETY-THIRD CONGRESS
FIRST SESSION
ON
NOMINATION OF LOUIS PATRICK GRAY III, OF CONNECTICUT,
TO BE DIRECTOR, FEDERAL BUREAU OF INVESTIGATION
FEBRUARY 28; MARCH 1, 6, 7, 8, 9, 12, 20, 21, AND 22, 1973
Printed for the use of the Committee on the Judiciary
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LOUIS PATRICK GRAY III
HEARINGS
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
NINETY-THIED CONGRESS
FIRST SESSION
ON
NOMINATION OF LOUIS PATRICK GRAY III, OF CONNECTICUT,
TO BE DIRECTOR, FEDERAL BUREAU OF INVESTIGATION
FEBRUARY 28, MARCH 1, 6, 7, 8, 9, 12, 20, 21, and 22, 1973
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
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For sale by the Superintendent of Documents,
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Price $3.45 Domestic postpaid or $3.00 GPO Bookstore
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COMMITTEE ON THE JUDICIARY
JAMES O. EASTLAND, Mississippi, Chairman
JOHN L. McCLELLAN, Arkansas ROMAN L. HRIiSKA, Nebraska
SAM J. ERVIN, Jr., North Carolina HIRAM L. FONG, Hawaii
PHILIP A. HART, Michigan HUGH SCOTT, Pennsylvania
EDWARD M. KENNEDY, Massachusetts STROM THURMOND, South Carolina
BIRCH BAYH, Indiana MARLOW W. COOK, Kentucky
QUENTIN N. BURDICK, North Dakota CHARLES McC. MATHIAS, Jr., Maryland
ROBERT C.BYRD, West Virginia EDWARD J. GURNEY, Florida
JOHN V. TUNNEY, CaUfornia
(II)
CONTENTS
Wednesday, February 28, 1973
Page
Abraham Ribicoff, U.S. Senator from Connecticut 1
Lowell P. Weicker, Jr., U.S. Senator from Connecticut 2
Louis Patrick Gra}^ III, nominee to be Director, Federal Bureau of In-
vestigation 4
David D. Kinley, executive assistant to the Acting Director of the Federal
Bureau of Investigation 76
Thursday, March 1, 1973
Louis Patrick Graj' III 147
Tuesday, March 6, 1973
Louis Patrick Gray III 2SG
Wednesday, March 7, 1973
Louis Patrick Gray III 305
Thursday, March 8, 1973
Louis Patrick Gray III 37.")
Friday, March 9, 1973
Edward I. Koch, a Representative in Congress from New York 435
Joseph L. Rauh, Jr., Americans for Democratic Action, accompanied b}'
Theodore H. Bornstein 444
Norman Dorsen, chairman. Committee for Public Justice, accompanied by
Leon Friedman, executive director. Committee for Public Justice, and
Stephen Gillers 462
Jack Anderson, newspaper columnist 476
Leslie H. Whitten, Jr., assistant to Jack Anderson 481
Hank Adams, national director. Survival of American Indians Association. 515
Edward Scheldt, Reston, Va 538
Monday, March 12, 1973
Stephen I. Schlossberg, general counsel, United Automobile Workers 541
Edward Scheldt, Reston, Va 554
Tuesday, March 20, 1973
Louis Patrick Grav III 575
David D. Kinley_l 591
Wednesday, March 21, 1973
Louis Patrick Gray III 607
Thursday, March 22, 1973
Louis Patrick Gray III 661
(m)
NOMINATION OF LOUIS PATRICK GRAY III
WEDNESDAY, FEBKUARY 28, 1973
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The committee met, pursuant to notice, at 10:45 a.m., in room 1202,
Dirksen Senate Office Building, Senator James O. Eastland (chairman)
presiding.
Present: Senators Eastland, McClelhan, Er^'in, Hart, Kenned}^,
Bayh, Byrd of West Virginia, Tunney, Hruska, Fong, Scott, Thur-
mond, Cook and Gurney.
Also present: John H. Holloman, chief counsel, and Francis C.
Rosenberger, Peter Stcckett, and Thomas D. Hart, prolessional
staff members.
The Chairman. These hearings are on the nomination of L.
Patrick Gray III, to be Director of the Federal Bureau of
Investigation.
Senator Ribicoff.
STATEMENT OF HON. ABKAHAM RIBICOFF, A U.S. SENATOR FROM
CONNECTICUT
Senator Ribicoff. Air. Chairman, we, in Connecticut, are proud
of Pat Gray, and so am I. ¥ve, in Connecticut, respect Pat Graj', and
so do I.
Mr. Chairman, I have kno^vn Pat Gray for many years. I have
always found him to be a man of outstanding abihty, character, and
integrity. Every job that Pat Gray has performed he has performed
Axdth excellence. There is no question in my mmd that Pat Gra}'- is a
dedicated public servent who vnW perform any task assigned to him
in a nonpartisan manner. I respect the FBI, and the entire Nation
respects the FBI. The FBI is one of the great law enforcement institu-
tions in America. All of us know that when youngsters come to visit
Washington, one of the first places they want to see is the FBI.
There is no question in my mind that as Director of the FBI, Mr
Gra}'' will perform his tasks on a completely nonpartisan basis. In all
the years I have kno^\Tl Pat Gray he has never questioned the civil
rights of individuals and the protection of constitutional guarantees.
M}^ feeling is that only the criminal has much to fear from Patrick
Gray, and that the law-abiding citizen has nothing to fear from Pat
Gray. He Vv'ill be a defender of om* rights, a defender of the Consti-
tution, and law enforcement in this Nation \y\\\ be stronger Avith Pat
Gvory as Director of the FBI. He has my unqualified support.
(1)
2
I am proud that Pat Gray is a citizen of Connecticut, and I am most
jileased that the President of the United States has seen fit to appoint
Pat Gray Director of the FBI.
The Chairman. Any questions?
Senator Weicker.
STATEMENT OF HON. LOWELL P. WEICKER, JE., A U.S. SENATOR
FROM CONNECTICUT
Senator Weicker. Thank you very much, ^Nfr. Chairman. I cer-
tainly associate myself with all that Senator Ribicoff has said. In
addition I have a few other comments.
Pat Gray comes to your committee as a man of very broad experi-
ence, fortunately not just in the law but as a man who has served
in the service as a Navy man, and as a man who went to law school,
as a man who served as a lawyer, as a man who served in HEW, as a
man who served in the Attorney General's office. In other words,
one ^vdlose life has touched upon many aspects of the American
experience, and I think that is a good thing for one who is going to
lead the FBI. He has not been in one narrow^ area of activity.
Now, Mr. Chairman, I would like to comment upon an innuendo
that has been made about this man of which I have firsthand knowl-
edge. There appeared in Time magazine a column devoted to Pat
Gray and in that column the following paragi^aph appears :
Much of the Senate opposition to Gray is rooted in his lack of law enforcement
experience. Gray, who became a lawyer while on active duty with the Navy
in 1949, retired after 20 3'ears military service in 1960. He was nominated for a
federal judgeship but because of his meager qualifications the nomination was
withdrawn before the American Bar Association could officially act upon it.
And in the same paragraph, I don't really know what this has to
do with the lead sentence :
He and Nixon had met at a Washington cocktail party in 1947 and the two have
been on friendly terms ever since.
I would like to du-ect my comments to the innuendo that is con-
tained in that paragraph of lack of legal qualifications. On November
23, 1971, 1 wrote to the then Attorney General, John Mitchell,
recommending Pat Gray to a vacancy on the second circuit court of
appeals, and I will make that letter available to your committee.
In January 1972, the Deputy Attorney General, Mr. Kleindienst,
wrote a letter to the standing committee on the federal judiciary
of the American Bar Association requesting that an informal report
on Pat Gray be compiled.
Now, prior to that report being compiled Pat's name was with-
drawn as, in fact, he was being nominated for the Office of Deputy
Attorney General.
Now, No. 1 : Your committee knows full well that Pat Gray was
never nominated for anything. Now let's get to the business of the
American Bar Association. Mr. Albert Connolly of Cravath, Swaine,
& Moore, New York, was designated by the ABA to investigate
Mr. Gray's qualifications. He stated, in reading over the personal
data questionnaire between February 1 and February 9, that he
decided ]\tr. Gray had more backgiound in Washington and should
be evaluated there.
Therefore, on February 9, he called Mr. Charles Horsky of Covmg-
ton and Burlmg here m Washmgton and transferred the evaluation to
hun. That was all that was done on Mr, Gra3^'s nomination before
February 16, when the nomination was withdra%Mi. Mr. Connolly
called Mr. Horsky on Februarj^ 16, and told him to stop the evaluation
because Mr. Gray's nomination had been withdrawn. Mr. Horsky
said that was okay because he had not done anything on it anyway.
Now that is the record, substantiated b}^ correspondence and by the
individuals.
I am ashamed, quite frankly, that this kind of innuendo and implica-
tion is contamed in a magazine that really had its beginnmgs in the
State of Connecticut so far as personnel were concerned, because if
that is the status of reportmg, it certainh^ is a far cry from the great
reporting that built Time, Inc.
Point No. 2 : The political role that Mr. Gray played. He does belong
to the Republican Party as do I, and I have certainly been active
durmg the past dozen j^ears in Republican politics in the State of
Connecticut and I have never heard of Pat Gray's role in the Republi-
can Party, or Republican politics in the State of Connecticut. He
plaj^s no role and has never plaj'ed a role in Republican politics in the
State of Connecticut. So I tliink we can throw that out the window
as being innuendo.
And lastly, Mr. Chau*man, we come to what I consider to be, and
I am sure the members of the committee also, the No. 1 issue that
confronts the entire Congress and the executive branch, and that is
the integrity of thought and the integrit}^ of practice within this
great democracy of ours and it is very much under test at this moment
in time.
I don't think I have to review my credentials insofar as my total
belief in a press free to tell us everything that is gomg on around us in
this countr}'. And I also believe very firmh^ in law enforcement free
of politics, and I certainly believe in a political system where its
participants are free from dishonesty of thought or deed. Let me say
right now in relation to the Select Committee that I serve on with the
distinguished Senator from North Carolina, commonly referred to as
the Watergate Committee, if one-tenth of Avhat I keep on reading is
true in relation to some of the activities of ray own party, God help
the person or persons who either participated dnectly or indirectl}' in
what I consider to be an American disgrace and a Republican shame,
and I very much believe, Mr. Chairman, in the untarnished American
dream.
Now insofar as Pat Gray's relation to these personal beliefs of mine,
I believe he is a man of absolute mtegrity, and I believe he is a man of
intellectual capacity, and I know that he believes not only in the words
of the Constitution and the laws of this Nation, but the spirit, and I
think that is even more important nowadaj^s.
And I think that should your committee and the Congress see fit
to appoint this man that he will exercise a leadership in the FBI that
is on behalf of all Americans.
Thank you very much.
The Chair:man. Do I understand from you that consideration of
him for appointment to the circuit court of appeals was A\T.thdrawn
because he was to be nomhiated for Deputy Attorney General?
4
Senator Weicker. ]Mr. Chairman, I am glad you raised this point.
It sUpped my mind. It has been a well known fact that for the past 9
months I have made no move to fill this vacancy on the second circuit
court of appeals, pending the decision of the President whether or not
to nominate Pat Gray to the Directorship of the FBI. I have held it
open. Would I take that course of action if I had known that the man
had been rejected by the ABA in an earlier evaluation? I am glad 3^ou
asked the question and that is the answer and I think it speaks for
itself.
Senator Ribicoff. Mr. Chairman, may I add that Senator Weicker
had talked to me some time ago about recommending Mr. Gray to
the second circuit court, which covers our State of Connecticut. At
that time I told Senator Weicker that as far as I was concerned I had
the highest regard for Patrick Gray and I would enthusiasticall}''
support the proposal of Senator Weicker. Subseciuentl}^ I was told by
Senator Weicker, and also in a kidding manner by Pat Gray, that he
had been nominated for the Deput}'' Attorney Generalship and was
going to take that instead of taking the life security of the second
circuit court. He felt that if the President wanted him to serve in
that capacity, he would so serve. So I reaffirm the statements of my
colleague. Senator Weicker, concerning Patrick Gray on the second
cu'cuit court.
The Chairman. Anj' questions, gentlemen?
Thank you.
Senator Weicker. Thank 3^ou.
The Chairman. Do 3^ou solemnly swear the testimony you are
about to give is the truth, the whole truth and nothing but the truth,
so help you God?
TESTIMONY OF LOUIS PATRICK GRAY III, NOMINEE TO BE
DIRECTOR, EEDERAL BUREAU OF INVESTIGATION
Mr, Gray, I do, Mr. Chairman.
The Chairman. Now, a^ou have a prepared statement.
Mr. Gray. Yes, I do, Mr. Chairman.
The Chairman. Do you want to go through that statement before
any questions are asked of you?
Mr. Gray. Yes, sir.
The Chairman. Y^ou Tnay proceed.
Mr. Gray. Mr. Chairman, and members of the committee, I am
pri^dleged and honored to appear before this distinguished committee
of the U.S. Senate.
The President has seen fit to send my name to the U.S. Senate, and
the Senate now has the responsibilit}^ — and for the first time the
opportunity — to advise and consent to the nomination of the Director
of the Federal Bureau of Investigation.
The President has made his decision and now the U.S. Senate sets
out to discharge its responsibility to examine into my Cjualifications
and work its will in reaching a decision.
With regard to my background and professional qualifications, Mr.
Chairman, I have sent to each member of the committee a copy of
my responses to a personal data questionnaire of the American Bar
Association prepared by me when it was believed that I might be
considered for an appointment to the Federal judiciary. I thought
these might be helpful to the Senators, since the questions of the ABA
were searching and my responses detailed and documented with
exhibits.
Also, for the first time, the Senate has the opportunity to inquire
into and evaluate the manner in which a man other than John Edgar
Hoover has discharged the responsibilities and exercised the power of
this great office.
But fn"st, Mr. Chairman, I wish to state a few of my basic beliefs
that I consider to be directly related to the manner in which I have
performed nw duties these last 10 months and in which I will perform
my duties in the months and 3''ears that lie ahead.
I believe in the United States of America, not only as a nation and a
people, but as an ideal that has helped to reshape the world.
I beheve in the democratic form of government, and in the sover-
eignty of the people.
I believe in a government of law, enacted by the people through
their representatives, and not in a government of men. I believe that
where this kind of law ends, tyrann}^ begins, and I believe that the
people have the right and the duty to oppose such tyranny.
I believe that individual constitutional rights are basic to our
society and our form of government, and I include not only the rights
of the accused to the full protection of the law, but also the rights of
all citizens to have that same protection.
I believe that it is possible for popular government to protect
itself from overthrow without den3-ing basic freedoms, and I consider
that one of the principal responsibilities of the FBI and its Director
is to prove that this can be done.
I believe in the FBI as a vital American institution. When it is
criticized, I will look into the charges to determine whether they
have any validit}''. And if they do, I will make the changes necessary
to maintain the FBI's posture as the finest investigatory agency in
the world. If they are not valid, I will defend the FBI with all the
personal energies and capabilities at my command.
I did not ask the Attorne}^ General or the President to place me in
the position of Acting Director on May 3, 1972, nor did I ask anyone
else to intercede for me. I believed then and I believe now that the
position of Director of the Federal Bureau of Investigation seeks
the man and not vice versa.
I said then and I say today that my appointment as Acting Du'ector
was accepted by me and interpreted by me as a return to the service
of my country, a return to the service of all the people of the United
States whom I had served so long in the U.S. Navy without regard to
party, to politics, or to ideology.
I am aware of, and humbled b}'', the responsibilities, as well as the
power, of the office I have occupied during the last 10 months. But, I
am not afraid of the responsibilities, nor do I fear to use the power
in the national interest and in keeping ^^dth constitutional safe-
guards. Every decision I have made has been considered carefull}^,
and I have approached each with a sense of humility.
The record of performance is there. I accept, Mr. Chairman, full
responsibility for that record.
No one can doubt the tremendous challenge inherent in following
the footsteps and building on the legacy of John Edgar Hoover, whose
6
personal vision and ideals, and whose leadership, made the FBI an
institution respected and honored by millions of our fellow citizens.
Thomas Jefferson said of Benjamin Franklin, "I succeed him; no
one could replace him."
I could and do say the same about Mr. Hoover. If ollow him in a
position of great responsibility to our people and to our Nation. He,
together with the men and women of the FBI who served A\dth him
during the years 1924 to 1972, created and built a magnificent organi-
zation devoted to the service of our country.
I welcome this opportunity to set forth for the committee, the
Senate, and the American peoj^le, an accounting of my decisions and
my actions, how I went about learning at first-hand the operations of
the FBI, examining and evaluating them, the changes I have made,
my veiwpoints, and the conclusions I have reached about this American
original.
Every American is a shareholder in the FBI. Every American has
a right, I believe, to know the frank and candid reactions and views
of the man who has held this responsible position since May 3 of
last year.
When I became Acting Director, I made a key decision. I decided
that I would not be a mere caretaker, making no waves and taking no
actions. Rather, as Acting Director, I would not only make those
decisions necessary for the day-to-day conduct of FBI operations but
also those long-term decisions essential to the continued effectiveness
and efficienc3^ of tlie organization.
Mr. Hoover's death left a serious void. The members of the FBI
were stunned and deeply grieved. They were accustomed to strong
leadership. I believed that only by taking a positive and active ap-
proach, by working closel}' with the traditional leadership of the FBI,
could we come through this critical period of transition.
I approached my assignment with deep feelings of respect and
admiration for the FBI. Yet, at the same time, there were no stars in
ni}^ CA'es. I had my feet on the ground and was read^^ to ask the
tough questions.
It is true that I had no i^rofessional law-enforcement experience
prior to my entry into the FBI. I had not been handicapped or pre-
disposed in any way, and, strange as these words may sound, I think
there is sound basis for this statement. The FBI is an investigative
agency accustomed to working on a daih^ basis ^^'ith inquisitive lawyers
and responding to tough questions. The law-enforcement expertise is
there in great abundance, and that expertise has responded mag-
nificently to my appearance on the scene and to my brand of
leadership.
Basic to my approach, however, was a desire to learn, to keep an
open mind, to become a part of the FBI as a living, active, human
organization.
Wliat made it tick? ^Vliat were the sinews, muscles, and nerves
that held it together? Wliat were its problems? ^Vlio were the FBI
people, both at headquarters and in the 59 field divisions across the
United States? How could I earn the respect of these dedicated men
and women, so that I could lead them effectivel}^ and so that we could
work together as the FBI had always worked, as a team, as a "we"
organization.
On my very first weekend in office, I developed a series of topics to
be examined by me and the senior officials of the FBI — which I later
distilled into 13 avenues of inquiry — dealing with such topics as or-
ganized crime, subversion, narcotics traffic, and espionage. A cop}' of
these avenues of inquiry, Mr. Chairman, is appended as exliibit "A"
to this statement.
Thus was launched the first group of a series of studies that continue
to this day and will be continumg under a new Office of Planning and
Evaluation far into the future.
I have been privileged, as no outsider had ever before been so
privileged, to observe the performance of the FBI at first hand, to
direct its performance, to question its performance, and to evaluate
its performance.
It is a rare tribute to ?slr. Hoover, and to the men and w omen who
built the FBI with him, for me to be able to sa) to you today that this
magnificent organization of human beings responded with a zest, an
enthusiasm, and with an all-consuming fidelity to perfection that is
unparalleled in my experience.
As the days passed, the position papers and study papers achieved
a degree cf excellence that seemed to challenge me, my own personal
staff, and the senior executives of the FBI to find any point, a single
topic, that should have been covered and w-as not.
These early days formed the most intensive educational experience
I have ever encountered, stimulating and filled with insights. I asked
the men and w'omen of the FBI to "show me" — and, beyond all ex-
pectation, they showed me wherein the FBI's reputation resides.
At the same time, I wanted to get to know them personally , It was
no graven image or historical mausoleum whose leadership I inherited
when I moved to FBI headquarters. It was a working organization.
It was a human institution.
I made a special effort to visit our field divisions, and, to date, I
have visited all of them except one. I visited the people of our head-
quarters divisions here in Washington. I talked to these dedicated men
and women — to the special agents in charge of the field divisions, to
the special agent who works the cases on the street, to the stenographer,
to the file clerk. I met with them. I wanted to see them, to talk to
them, and I wanted them to see me. This was a period of transition,
a period of trial, evaluation, and measurement on both sides.
I consider these visits to the field and to our headquarters divisions
to be of overriding importance to the effectiveness of our overall
effort and to our morale. I have every reason to believe that the men
and women of the FBI share this view.
I moved into the FBI wdth a leadership philosoph}^ that comes down,
fundamentall}^, to a choice between the meat axe and an attitude of
mutual trust and confidence. A new' man can enforce control, which
is wdiere the meat axe comes in, or he can build confidence — confidence
up and confidence do\vn. He can run a penal colony, or a living,
breathing, human organization, with all the risks that entails and all
its incomparable strengths. I chose the latter course, and I am proud
to report, Mr. Chairman, that the morale in the FBI is high, and I am
pleased to say that it has always been high.
Very naturally, as the Acting Director, I based my conduct of the
operations of the FBI on certain principles — principles that have set
8
the tone for 1113' 10-month administration. I would like to share some
of them with you, for these are principles that affect not only the FBI
internally and operationally but affect its role in our free societ}^.
First, I am determined that the FBI will remain completely and
absoluteh^ nonpolitical. This is one of the pillars of its historic strength.
This is a policy that enables the FBI to perform efficiently, regardless
of which great political party holds the reins of government, a policy
that enables the FBI to carry out its responsibilities without the pull
of political allegiance or the thrust of political influence.
When I met with President Nixon last May, at the time of my ap-
pointment as Acting Director, he gave me only one instruction, and
he reiterated it on the 16th of tliis month, that the FBI and its Di-
rector continue to stay out of politics and to remain free of politics.
I was not at all surprised to receive this instruction. It typifies our
past relationship, which, for a decade and more, has always been
essentially professional, on my part, as a law3xr and administrator.
It is going to remain that way.
I pledge to the members of this committee, to the Senate, and to the
American people, that, if the Senate advises and consents, and the
President appoints, I will cause the FBI to continue to exercise the
highest degree of professional competence in the interest of our Nation
and all its people. At no time will political considerations or influence,
in anv shape or form, alter or guide mv decisions or the activities of
the FBI.
If, Mr. Chairman, I am unable to persevere in this determination
for nnj reason, if my loyalties to the Nation's elected leadership, to
the Constitution, and to my job, ever come into conflict, I will resign
at once and return to my beloved law firm in southeastern Connecticut.
In following another operating principle, I have tried to open the
windows, so to speak, to give the public and the news media an op-
portunity to see a little more of the FBI's internal workings, not just
its final accomplishments.
I happen to believe — with Thomas Jefferson — that our democracy
is a very fragile and precious form of Government, and I believe that
it has lasted all these years because an interested and informed elec-
torate has had confidence in its institutions. If the American people
are informed of the facts, they can be counted on to make the right
decisions and support the right decisions most of the time. And they
become informed primarily through a free press, reporting objectivel}''
and factually.
I realize that the FBI cannot live in a fishbowl. We are an investiga-
tive agency and an intelligence agency. Constitutional due process
and national security considerations demand a measure of secrecy
for the protection of individuals, to protect the integrity of the
investigative process itself, and for the common good, the general
welfare of society as a whole.
It is now FBI policy, however, and to the maximum extent possible,
to furnish information to the news media, to answer questions, to
allow them to have a firsthand look at some of our activities, in the
hope that such a policy -will enable them to better understand and to
report to the American people the facts regarding FBI operations.
If the American people are not informed, or are misinformed, some
of the blame must necessarily rest with us. We are making the effort,
and will contmue to make the effort, to work with, not against, the
press.
The committee might be interested in knowing that, during the
past 10 months, 1 have met with more than 1,000 members of the
fourth estate representing all segments of the media. 1 have met
with a large number of them in my office in head-to-head situations,
and in groups. I have talked to them over the telephone; I have
answered their inquiries at press availability conferences. On my
\'isits to our field di\'isions, 1 have specifically announced in advance
that I w^ould be available to any interested member of the press.
I have also undertaken to make myself available through public
appearances in various parts of the country, before law enforcement,
civic, church, educational, and business groups. I believed then, and 1
believe now, that this is one way in which I can report to the American
people about their investment in the FBI. Fourteen of 33 speeches
made through November 17, 1972, and sponsored by organizations
other than the FBI or the Department of Justice, were made in con-
nection with my visits to our field di\dsions. Durmg this same period, I
also made eight speeches sponsored by the FBI or the Department. I
submit, Mr. Chairman, that a fair reading of these speeches will
indicate clearly that these were not political or campaign speeches.
There was no intent that they be, and they were not ^^Titten to be,
political or campaign speeches.
^Ir. Chairman, I have appended a list of these appearances as
exhibit "B" to this statement.
The Chairman. It will be admitted into the record.
Mr. Gray. Also, I have endeavored to talk with indi^^duals who
have, in the past, been critical of the FBI. I believe in personal
dialog, in person-to-person discussions, where there is some chance,
however slight, of correcting misunderstandings. On occasion, these
have arisen because accurate information about the FBI has been
lacking. I have tried, to the best of my ability, to correct such mis-
understandings. 1 am also well aware that dialog is of no avail if the
human mind is closed.
Still another operating principle is that the FBI ^^'ill continue to be
a servant of the people, all the people, responsive to protecting both
the security and the rights of every citizen.
I believe that there is no principle more important to a free society
than that government should remain close to the people, and that the
dispersion of power in our Federal system is one of the great safeguards
of the hberties of a free people.
Fears have been expressed — b}^ a very small number — that the FBI
is becoming a national police force, that it is infringing on the liberties
of the individual citizen. I pledge to this committee, the Senate, and
the American people, that as long as I am its Director, the FBI will
not exceed the jurisdictional authority defined by the President and
the Congress, the FBI ^\•ill respect the constitutional guidelines handed
down by the Judiciary. In brief, the FBI will not take the law into its
o-wn hands.
As for my principles of management, you know that a new man at
the top can signal any number of radical changes, or his arrival can
mean a continuation of the same policies and procedures, with or
without careful examination and evaluation.
I resolved to follow a course of continuity and change, that of
continuing the same policies and procedures, -with a careful examina-
tion and evaluation being conducted simultaneously.
10
It is not my A\ay to move in ^Wth the broad brush of change if the
organization has been deHvering the product coupled with a handsome
return on equit}^ This was the situation in the FBI.
^[y evahiation of the FBI, based on probing and study, is clear.
The Nation can be proud of the quality of its performance. The men
and women of the FBI are complete professionals. Their prime, and
overriding, characteristic is a sustamed pursuit of excellence in service
to the American people.
It is true, however, based on our evaluations, that some changes in
policies and procedures have occurred. There is nothing discrediting
about this. Mr. Hoover, to his eternal credit, built a superb organiza-
tion unic^uely adaptable to change, wliicli is why it has always remained
so effective in its operations.
Some of these changes have been substantive in nature and, as you
are undoubtedly aware, some have been well publicized. For example,
the FBI since last May accepts applications from women who aspire
to become special agents, a policy determmation which, incidentally,
also happens to be m accord with the law of the land.
We now have seven female agents who have been assigned to field
divisions of the FBI following their successful completion of our new
agent's training course. They are performing the same duties as their
male counterparts.
Eight more female agents are still in training. Four of them are
members of the new agents class that will graduate tomorrow, and
they too will be reporting to field divisions.
Early last June, changes were made in the grooming standards for
members of the FBI, but not in the requnement that they be neat,
clean, and presentable in appearance. We changed the grooming stand-
ards; we did not abolish them.
I know, and every man and woman in the FBI knows, that the FBI
would self-destruct without discipline. We have not abandoned our
disciplinary procedures but we do approach them and apply them in a
different manner. A law-enforcement agency of any kind or size cannot
function at all, let alone function in the pubHc interest in accordance
with law, without a firm, fair, and swift disciplinary system.
On May 26 last, I announced that an Office of Equal Employment
Opportunity Affairs was being established for the specific purpose of
intensifying the FBI efforts to recruit more black Americans, Asian-
Americans, Spanish-speaking Americans, and American Indians.
My initial inciuiries last spring showed that the FBI's overall record
in this area had been good. Special efforts had been made to recruit
employees from these groups of Americans, but it had proven difficult
to attract people qualified in every particular to meet the standards for
FBI agents.
Although recruiting among these Americans is tough, we will not
lower our standards, and I am certain that members of these groups of
America.ns would not want us to do so.
Representatives of the Office of Equal Employment Opportunity
Affairs visit our field divisions across the United States and meet with
influential community leaders and members of the press, among others,
in an effort to recruit qualified applicants from these groups.
Since May 1972, we have achieved an increase in the FBI from
among these groups of Americans, Mr. Chairman, and I have appended
exhibit "C" to this statement which sets forth the small gains that lots
of hard work has so far produced.
11
The Chairman. It will be admitted into the record.
Mr. Gray. Another basic change in our policies concerns the re-
ordering of investigative priorities in the area of organized crime.
Organized crime is a tenacious, brutal, and costly social malady.
The investment capital of the organized criminal element is generated
by its tremendous illegal gambling combines and narcotics traffic
throughout the country. This investment capital enables the under-
world to finance other criminal activities, as well as fraudulent activi-
ties in legitimate business and industry.
In order to strike organized crime where it would do the most
damage, that is, at the top and in the pocketbook, we are concentrating
our manpower on the larger, more powerful hoodlum groups, on the
upper echelon leaders, and on their most prolific sources of illicit
revenue.
The emphasis is not on assembling statistics, or keeping a high
caseload, but in using our resources to hit dii'ectly at the strong
points of the criminal enemy.
Along these same lines, we have improved our acquisition and dis-
semination of narcotics intelligence. Violations of the narcotics laws,
of course, are not '\\-ithin the investigative jurisdiction of the FBI.
But m the performance of our regular work, we receive information
concerning the drug traffic and about the prmcipals mvolved in this
traffic.
Last summer, following receipt and study of a thorough in-house
survey of the narcotics problem that I had ordered, I instructed each
of our field divisions to designate a special agent as the narcotics
coordinator for the division. So also I directed that a narcotics co-
ordinator be designated at FBI Headquarters, and I ordered each
special agent in charge of our field divisions to mtensif}^ the acquisition
of narcotics intelligence for transmission to agencies having du'ect
investigative responsibilities in cases involving violations of our
narcotics laws.
This shift in emphasis has improved our efficiency in generating
narcotics intelligence and this, in turn, is proving to be of real help to
the agencies with jurisdiction in the narcotics field.
We have established a new FBI policy designed to insure complete
fairness regarding civil rights investigations in cases involvmg com-
plaints against police officers — fairness to the officers and the com-
plainant. We do not assign special agents to make these investigations
who have worked with the officers involved in the normal course of
business. We bring in an agent who has had no prior close association
with the local police department. This policy is in the interests of all,
our agents, the police, and the public we both serve.
In August 1972, the evaluation process that I had been spearhead-
ing jDersonally for 3 months was formalized in an Office of Plannmg
and Evaluation. This office has been, and will be, conducting de-
tailed studies of all phases of FBI operations, policies as well as pro-
cedures. We are giving ourselves a good, thorough overhaul, and we
believe that we are the people best qualified to undertake this task.
The FBI, an agency of nearly 20,000 employees, needs topflight
management. To further this objective, I have altered some, and
initiated new, management programs. For example, last October I
established Executive Selection Boards comprising experienced top
level executives from both our Headquarters and field staffs to recom-
mend to me those men in our ranks best qualified to advance to
12
positions of greater responsibility and authority. Another example is
the institution of management instruction programs for our executives.
These individuals are required to keep abreast of the latest ideas and
concepts in effective decisionmaking, work planning and productivity,
performance appraisal and evaluation, and human behavior.
And if that reference to "human behavior" seems inappropriate to
the FBI agent — it is not. The men and women of the FBI, like all
law-enforcement people, are expected these days to serve as baby
sitters, handholders, and behavioral scientists, even as we expect
them to confront the most desperate criminal with guns and guts
and raw courage. It is not easy for the police officer to serve in this
dual capacity. But increasingly he must. He has to be more of a
sociologist, and, simultaneously, no less of a cop.
During the past 10 months, we have taken steps to bring our
headquarters and field staffs closer together. In an organization
stretching from Honolulu to Bangor, Maine, from Anchorage, Alaska,
to San Juan, Puerto Rico, there is always the danger of polarization,
of hard-core divisiveness between headquarters and the field staffs.
As I indicated previoush^ I have visited 58 of the 59 field divisions.
I have personally met, and talked at length, with each of our special
agents in charge, as well as other field officials. I want to know their
problems because their problems are our problems. I seek their
counsel; in fact, I demand their advice and counsel. I want to establish
that personal rapport which builds confidence and enhances perform-
ance.
In this connection, the FBI now encourages the interchange of
ideas between field and headquarters officials. We have made this
exchange a reality by visits to and from the field and to and from
headquarters by our key officials.
Most important, we have taken steps to increase the productivitj^
of the special agent in carrying out his daily assignments. To this end,
we have eliminated a number of sheer administrative chores requiring
considerable paperwork, thereby stealing his time from investigative
tasks. For example, last June, shortly after I became Acting Director,
we discontinued the requirement to maintain so-called time in the
office statistics, that is, keeping account of the time spent by the agent
in the office during working hours.
We are seeking to free the special agent from unnecessary adminis-
trative burdens, thereby enabling him to turn in an even better
performance during his day's work.
The FBI forms part of a law-enforcement team, a team that today
stands on the front lines against crime.
I have made a special effort to meet personally ^^'ith my brother
law-enforcement officials. Last year, for example, some 50 of the
Nation's chief law-enforcement officials, representing the major urban
and metropolitan areas of our land, met Avith me and top execu-
tives of the FBI in my office in small groups so that we could have
meaningful, thorough discussions. We reviewed our specific needs in
the fight against crime, the cooperative services of the FBI, and ways
in which we could be of further help to them and they to us. Their
13
cooperation has been, and continues to be, of great assistance to the
FBI.
Last spring our new FBI Training Academ}^ opened at Quantico,
Va., affording increased opportunity for improved pohce training and
thereby contributing heavily to the development of police professionals.
One of the more promising features of our National Acadenw pro-
gram is our affiliation \vith the University of Virginia. We are brmging
the cop to the campus and the campus to the cop. Both are profiting
from a really important learning experience.
We have held three national s^^mposia at the new FBI Academy
at Quantico. These have been devoted to major police concerns such
as police-community relations, urban police patrol practices, and ter-
rorism. A national seminar on current bombing problems began at the
Academy on Februar}^ 25 and concludes toda}", February 28.
To help law enforcement agencies cope A\dth the gro\\dng danger of
deadly attacks, the FBI developed a week long antisniper and sur-
vival training course ui the fall of 1971. A total of 940 officers, repre-
senting 186 agencies, have been afforded this trainmg at Quantico and
another 200 agencies are waiting to be accommodated.
Mr. Chairman, I have prepared an exhibit to tliis statement that
sets forth additional changes made in FBI policies and procedures
during the past 10 months, exhibit D. I do this to save time, not
to indicate that they are of lesser importance than the ones I have
discussed \vith the committee. Some are, but some are not.
The Chairman. That is exhibit D? It ^^all be admitted mto the
record.
Mr. Gray. Mr. Chairman, after 10 months as a member of the
FBI and from my vantage point as Acting Director, I ha^■e found the
FBI to be a superb organisation, a faithful servant to our democratic
tradition. Its foundations have been well built; its people are complete
professionals; and their dedication is to service, integrity, and
excellence.
There have been changes in style, simply because I am Pat Gray
and not Mr. Hoover. I have, where I felt it was necessar}^, made some
changes, changes that I was convinced would be beneficial not only
to the FBI but also to the people we serve.
But the FBI remains the same, an FBI dedicated and loyal, imbued
with the concepts of fidelity, bravery, and integrit}^— the servant of
the people.
I am highl}^ optimistic about the future of the FBI and our free
society.
I am optimistic about the future of the FBI because I know — as
only an insider can ever really know — that the people of the FBI are
imbued Avith a spirit and dedication to constitutional principles that
augurs well for the future.
The FBI, operating as it does under the constitutional controls of
our democratic system of government, is, I believe, one of our greatest
national institutions.
I am honored and humbled, Mr. Chairman, to have been nominated
by the President to be its Director.
Thank you, sir.
(The exhibits referred to follow :)
91-331—73-
14
Exhibit A
Avenues of Inquiry
(1) Organized Crime.
(2) Subversion (Specifically include in this paper a detailed analysis and
justification for our current policies with regard to the investigation of individuals
where there has been no specific violation of Federal law. Is additional legislation
needed in this area?)
(3) Drug Abuse (This is one of the Nation's most pressing problems and we
should be sure that the FBI is doing everything possible to assist. Set forth
specific contributions which we have made during the last six months. What
further should we and can we do? Imagination and ingenuity should be exercised
to explore possibility of further contributions within our jurisdictional lines and
without diverting substantial manpower from other critical areas.)
(4) National Police Force (What safeguards do we have to prevent the FBI
from becoming a National police force? What role should the Inspection Division
play and should the Inspection Division report directly to the Director?)
(5) Bureau Files (We have a vast amount of information in our general files,
in the National Crime Information Center, and in the Identification Division.
Are we taking adequate security precautions to prevent leaks to unauthorized
persons? Are state safeguards adequate to insure the confidentiality of National
Crime Information Center information? Are classification procedures completely
responsive to our needs and to the needs of other Federal agencies? Is there a
need for certain of our files of a very sensitive nature to be given greater security
than the criminal files?)
(6) FBI Jurisdiction (Should we have an office specifically set up for the evalu-
ation of pending legislation and to study the needs for any additional legislation?
Are FBI jurisdictional lines sharply defined? Is there any need for legislation to
transfer some of our responsibilities to other Federal agencies?)
(7) Police Training (Is our training responsive to the needs of the police
agencies we serve? What role should the FBI assume in this field? Examine our
National Academy program.)
(8) Personnel Matters (Recruiting, applicant standards, evaluation, discipline,
including methods by which employee is advised of requirements.)
(9) Director's Advisory Committee (Need for, proposed make-up, and method
of operation.)
(10) Director's Staff Group (Mid-range and long-range policy planning and
evaluation.)
(11) Office of Minority Affairs (What steps can be taken to increase the num-
ber of qualified ajjplicants from minority groups?)
(12) Should the FBI Special Agent Position be Opened to Women? (Require-
ments of the position should be carefully considered.)
(13) Grooming and Personal Appearance Standards for FBI Employees
(Here we must consider the tenor of the times. We must be sure that our standards
are reasonable and yet at the same time preserve the effective image of the Bureau.)
15
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18
Exhibit C
Increases in Minority Employment
Following is a tabulation as of February 1, 1973, of FBI employees who are
members of four minority groups, compared with the number employed as of
May 1, 1972:
FBI
Field offices headquarters
Total
FBI black employees as of IVIay 1, 1972:
Agents
Clerks
Total
FBI black employees as of Feb. 1, 1973:
Agents
Clerks
Total..
FBI Spanish-surnamed employees as of May 1, 1972:
Agents .--.-.
Clerks.
Total
FBI Spanish-surnamed employees as of Feb. 1, 1973:
Agents
Clerks
Total
FBI American Indian employees as of IVlay 1, 1972:
Agents
Clerks
Total..
FBI American Indian employees as of Feb. 1, 1973:
Agents _.
Clerks
Total
FBI Asian-American employees as of IVIay 1, 1972:
Agents
Clerks _.
Total
FBI Asian-American employees as of Feb. 1, 1973:
Agents
Clerks
Total _._.
60
3
1,231
63
154
1,385
214
1,234
1,448
67
5
1,358
72
195
1,553
262
1,363
1,625
61
1
116
62
110
226
171
117
288
74
1
134
75
120
254
194
135
329
3
0
0
3
2
2
5
0
5
11
0
1
11
7
8
18
1
19
15
0
22
15
23
45
38
19
28
22
0
26
60
19
54
47
26
73
Exhibit D
Additional Changes in FBI Policies and Procedures May 3, 1972 to Feb-
ruary 28, 1973
1. Delegation of greater authority to Special Agents in Charge to handle
investigative matters.
2. Reduction in frequency of routine administrative reportmg from the field.
3. Instituted annual 2-da3' conferences at Headquarters for Special Agents in
Charge and eliminated the requirement that they attend Inservice classes.
4. Instituted policy of bringing Assistant Special Agents in Charge and super-
visors to Headquarters for specialized management training.
5. Increased personal consultation between the Acting Director and the
Executives Conference. Formerly, the Executives Conference met with the
Associate Director.
6. Left the two Assistant to the Director positions vacant in an effort to shorten
the lines of reporting between the Assistant Directors and the Acting Director.
7. Realigned supervisorj^ responsibility of certain investigatory matters among
the Headquarters divisions.
19
8. Instituted program of sending top Headquarters personnel to the field
divisions for consultations.
9. Reorganized functions previously assigned to the Crime Research Division
by transferring responsibility for Congressional and press services to the Director's
Office and remaining functions to other divisions.
10. Instituted a policy of transferring top Headquarters personnel to the field
and top field personnel mto Headquarters.
11. Reestablished a liaison section to facilitate and expedite business with
other government agencies.
12. Puiged inactive arrest records of individuals age 80 and older from the
fingerprint files.
13. Reduced the length of tours for personnel on foreign assignments from 3
years to 2 years.
14. Re-emphasized Inservice training for Special Agents and instituted special-
ized classes for Inservice training.
15. Eliminated the requirement that Agents in Resident Agencies submit dailj^
reports of their activities.
16. Clarified the Hardship Transfer Policy, which allows transfers for personnel
with severe personal hardships which could be alleviated bj^ a change in office of
assignment.
17. Modified the weight limits for Special Agents to make them more realistic
in accoi dance with expert medical advice.
18. Changed policy on granting advance of funds to an employee officially
transf erred, to include advances for:
(1) Per diem and mileage when travel is by a privately owned automobile;
and
(2) Subsistence expenses while occupying temporary quarters.
19. Instituted voluntarj^ physical fitness program with established standards
for Special Agents, allowing them to use up to three one-hour periods per week
during regular working hours for this purjoose.
20. Revised procedures for evaluating disciplinary action in connection with
inspections.
21. Established tougher physical tests for Agents in training.
22. Cut from two years to one the time period that Special Agent applicants
must wait to be re-examined if they fail to qualify on the first try.
23. Changed the ciualifications for the Special Agent position to consider certain
enlisted military service as sufficient under the Modified Program for Special
Agent applicants. Formerly the only enlisted service which was considered
sufficient was that in military intelligence.
24. Changed the qualifications for tour leaders so that female clerical person-
nel are eligible to be tour leaders, a position formerh' restricted to male clerical
personnel.
2.5. Changed the smoking rules to apply equallj^ to men and women. Formerly
female emploj^ees were prohibited from smoking at their desks.
26. Changed rules to allow employees to have coffee, soft drinks, etc., at their
desks. Formerly, this had not been allowed.
27. Changed policy to allow certification, where appropriate, of former em-
ployees as desirable for employment in the criminal justice field upon completion
of their education as required to qualify for Law Enforcement Education Pro-
gram (LEEP) loans. Prior policj' was to certifj', where appropriate, onlj' current
employees.
28. Discontinued the program of gathering biographical data on non-incumbent
Congressional candidates.
29. Caused a White House Fellow to be assigned to the Bureau for the first
time.
30. Established the Law Enforcement Training Advisory Committee.
31. Discontinued the compilation of statistics on the recovery of stolen motor
vehicles which were transported in interstate commerce unless the vehicle was
recovered specifically as a result of FBI investigative efforts.
32. Instituted a training program for airline personnel in anti-hijacking pro-
cedures.
The Chairman. You made a very fine and able statement, Mr.
Gray.
You state that the President's instruction to you, his only instruc-
tion when you were appointed, was to stay out of politics, is that
correct?
20
Mr. Gray. That is correct, sir. He did that on May 3, then also
on May 4 in the presence of my wife, and my wife volunteered the
information she was going to go down and work as a volunteer for
the Committee to Reelect the President, and he told her not to go
and to have absolutely nothing to do with politics.
The Chairman. Well, in fact, have you stayed out of politics?
Mr. Gray. I have done my very level best to stay out, Mr. Chair-
man, and I believe
The Chairman. Well, have you stayed out?
Mr. Gray. Yes, sir.
The Chairman. All right.
Now, the charge is made that the White House got you to go to
Cleveland, Ohio, to make a speech. Wliat are the facts about that?
Mr. Gray. The facts in that case are that a memorandum was
sent to me, and I was one of perhaps 20 to 30 people, I am told, in-
viting my attention to this particular speaking engagement at the
City Club of Cleveland, and stating in the last paragraph of that
memorandum, Mr. Chairman, I believe, that Ohio was important to
us and it would be a thing, a nice tiling, to do.
Let me stop for just a moment here and ask, Mr. Chairman, if I
may have the permission of the committee to submit for the record
the actual documentary information regarding this particular incident.
The Chairman. Yes, sir.
Mr. Gray. All right, now I would like to continue. I reviewed the
record, and I saw that this particular group, the City Club of Cleve-
land, had been sending invitations to the Director of the FBI since
1968 asking that he attend. I saw in the record that the staff of the
FBI had recommended that the Director attend because of the com-
position of this group.
Now at the particular time this memorandum came to me, I al-
ready had the in\'itation from the people at the City Club and I imme-
diately asked that the staff of the FBI look into this and determine
whether or not there were any political overtones here. I received
back a memorandum which is a part of the documentation that I
wish to insert in the record.
The Chairman. It will be admitted.
(Mr. Graj^ subsequently submitted the following documents for the
record :)
The White House,
Washington, B.C., June 13, 1972.
Memorandum for: Hon. L. Patrick Gray.
From: Patrick E. O'Donnell.
Subject: Freedom's Forum — The City Club, Cleveland, Ohio.
The Citj^ Club has asked our assistance in attempting to secure your partici-
pation as a key speaker sometime during the period following July 1, 1972. Since
its founding fifty years ago, Cleveland's Cit}- Club has been a focus and one of
the bulwarks of freedom of speech in one of America's great cities. The Club
maintains a deep interest in affairs of government, economics and politics, both
national and international. It offers a prestigious meeting place for the open
discussion of important social, political and economic problems.
The}' meet every Fridaj^ at noon and have a 300 maximum attendance. However,
if you were inclined, they could "go public" and provide almost a crowd of any
size you might desire. Both Secretaries Hodgson and Shultz have recently
addressed the Club and just recently Ambassador Bush delivered a well-received
speech.
With Ohio being crucially vital to our hopes in November, we would hope you
will assign this forum some priority in planning your schedule. In the event you
21
are interested, I have full background material available. Incidentally, Under
Secretary of Commerce Jim L3'nn is quite familiar with the Club.
Many thanks.
Memorandum
U.S. Government,
June 16, 1972.
Re Request for appearance of Acting Director Graj^.
To: Mr. Bishop.
From: M. A. Jones.
Subject: The City Club, Cleveland, Ohio.
A memorandum dated June 13, 1972, from Mr. Patrick E. O'Donnell, advised
Mr. Gray that his assistance had been requested to secure Mr. Gray's participa-
tion as a key speaker before The City Club of Cleveland, Ohio, sometime after
July 1, 1972. He pointed out that the Club meets Friday at noon, and although
they have a maximum attendance of 300, they could "go public" if Mr. Gray
were so inclined. He commented that Secretary Hodgson and Shultz recently
addressed the Club as well as Ambassador Bush. The Club offers a prestigious
meeting place for the open discussion of important social, political, and economic
problems.
The Cleveland Office has advised that The Citj^ Club has no political connec-
tions and actually the majority of the members could be classified as "liberals."
The Club engages in discussing controversial subjects and it is entirely possible
that some embarrassing questions could be put to Mr. Graj^ which might prove
embarrassing to him and the Bureau. They also noted that these meetings are
carried live on local radio stations.
Although Cleveland points out that this Club discusses controversial subjects,
it is believed that it might be advantageous for Mr. Graj^ to appear before such a
group. As indicated, the Club is dominated by liberals and these are the type of
people we should be contacting in an effort to "convert them."
Recommendation:
Mr. Gray may desire to accept this invitation and, if so, he should indicate
some Friday after July 1st when he could appear. (Due to other commitments,
it would appear that a Friday in August or early Fall might be the most con-
venient). Thereafter, additional details will be obtained from Mr. O'Donnell.
U.S. Government,
June 27, 1972.
Memorandxjm
Re Request for Appearance of Acting Director Graj-, August 11, 1972.
To: Mr. Felt.
From: T. E. Bishop.
Subject: The City Club, Cleveland, Ohio.
In a memorandum from Jones to Bishop dated 6/lb/72, there was set forth
details concerning an invitation extended to Mr. Gray by The City Club of
Cleveland, Ohio, for him to be a key speaker at a Fridaj'' noon meeting of the
Club sometime after July 1, 1972. It was recommended and approved that Mr.
Gray accept the invitation if possible. Mr. Gray noted, "I will do it but push it
out ahead. Check with Mrs. Neenan."
After consulting with Mrs. Neenan, on 6/26/72 Bishop advised Patrick E.
O'Donnell of The White House, through whom the invitation had been extended,
that Mr. Gray could make this appearance on August 11, 1972. O'Donnell stated
that he would check with Lawrence Robinson, Executive Director of The City
Club of Cleveland, (telephone — area code 216, 861-1260), to ascertain if this date
is satisfactory and advise Bishop of the result on 6/27/72.
On 6/27/72, Mr. O'Donnell advised Bishop that Mr. Robinson had informed
him that the Club would be delighted to have Mr. Gray speak to it at its noon
meeting on Friday, August 11, 1972. He advised that Mr. Robinson stated that
he would furnish Mr. Gray additional details concerning the Club and the meeting
in question in a letter to be forthcoming in the immediate future.
RecomTnendation:
That Crime Records Division begin preparing an appropriate speech for use
by Mr. Gray on August 11, 1972.
22
Jb Robinson Co., Jewelers. Inc.,
Cleveland, Ohio, June 28, 1972.
Mr. L. Patrick Gray III,
Acting Director, Federal Bureau of Investigation,
Department of Justice, Washington, D.C.
Dear Director Gray: Thank you for agreeing to speak at the City Club of
Cleveland on August 11, 1972!
Patrick E. O'Donnell has been enormously helpful to us and we are writing at
his suggestion.
Our usual schedule is to have lunch at Noon, followed by a half hour talk be-
ginning at 12:30 p.m. Questions follow until we close at 1:30 p.m.
We will have an office available for your private use before and after your
presentation.
I will be in touch with your Assistant Director Bishop with additional details.
We are looking forward to the privilege of having you here.
Sincerely yours,
Larry Robinson.
The City Club,
Cleveland, Ohio, July 7, 1972.
Mr. L. Patrick Gray III,
Acting Director, Federal Bureau of Investigation,
De-partment of Justice, Washington, D.C.
Dear Director Gray: We are very pleased that you have accepted our
invitation to speak at our Forum on Friday, August 11. As you may know this
Forum has brought many well known people to Cleveland and raised many
crucial issues in the past. Many of our speakers have used this opportunity for a
major policy statement.
The Forum is carried live by one radio station (WCLV) and rebroadcasted in
its entirety by four others. We also get full TV and press coverage.
We begin with lunch at noon, go on the air at 12:30 with your speech, and
close with a half hour of questions till 1 :30. Please plan your presentation to last
25-30 minutes.
Will you please send us some biographical materials and the topic of your
speech so that we may give your coming adequate publicity.
Thanks again for planning to be with u? on June 16. We look forward to seeing
you then.
Sincerely yours,
Alan Davis, Executive Director.
July 12, 1972.
Mr. Larry Robinson,
J. B. Robinson Co., Jewelers, Inc.,
Cleveland, Ohio.
Dear Mr. Robinson: Assistant Director Bishop has advised me of your very
kind offer of cooperation in regard to my forthcoming trip to your city and you
may be sure I deeply appreciate yom* gracious hospitality.
Thank you for offering to meet me at the airport, but this will be unnecessary
since I previously made arrangements for transportation from there to the City
Club of Cleveland. Mr. Bishop or a representative from our local office in Cleveland
will be in contact with you prior to my speech concerning any additional details
relative to my visit.
With best wishes and warm respect,
Sincerely yours,
L. Patrick Gray III,
Acting Director,
July 13, 1972.
Mr. Alan Davis,
Executive Director, The City Club,
Cleveland, Ohio.
Dear Mr. Davis: I received your letter of July 7th and am certainly looking
forward to being with you at your Forum on August 11th.
23
In regard to your request, I am enclosing a copy of my biographical sketch and
my photograph which you may use as indicated in your letter. A representative
from my office will be in contact with you concerning the topic of my address.
With best wishes and warm respect,
Sincerely yours,
Pat Gray
L. Patrick Gray III,
Acting Director.
Mr. Gray. This stated in no uncertain terms that this was not a
pohtical group, gave its composition, and said if anj'thing this was a
liberal group and even went so far as to say I ought to go to speak to
them in order to try to convert them.
Mr. Chairman, I went to speak because I believe that I should
go to speak to all Americans; but if 3^ou asked me under oath if I
went because I got the memorandum from the White House, I will
saj' no, sir, I did not. I went for difTerent reasons.
The Chairman. What kind of speech did j^ou make?
jN'Ir. Gray. The title is in the exhibit and, as I remember it, it had
absolutely nothing to do with politics. And the speech, incidentally,
we have submitted — yes, it was entitled "Freedom Under Law," the
City Club of Cleveland August 11, 1972, and with the permission of
the chairman I would like to insert that speech in the record.
The Chairman. It will be admitted.
(Mr. Gray subsequently submitted the follo^^'ing document for the
record :)
U.S. Deaprtment of Justice,
FEDERAL BUREAU OF INVESTIGATION,
Friday, August 11, 1972.
"Freedom Under Law" — An Address by the Honorable L. Patrick Gray
III, Acting Director, Federal Bureau of Investigation
In January, 1787, our Minister to the Court of St. James — John Adams — sent
to the pi-inters a book which he thought might prove useful to his countrymen.
Shays' rebellion had recently occurred in Massachusetts, and friends there were
writing that confusion and anarchy lay just over the horizon. This rebellion was
viewed by some at home as the popular uprising inevitably leading to a dictator-
ship which would restore order and guarantee the security of life and property — at
the cost of freedmn.
John Adams wrote to convince his countrymen that a salutary restraint is a
vital principle of libertj'. He also wrote to persuade his fellow citizens that good
laws and orderly government alo7ie could protect lives, liberties, religion, property,
and character.
Later in that year of 1787 when our Constitution was drafted, the framers
placed the highest priority on freedom under law — not the one or the other, but
both together, "one and indivisible"!
Alexander Hamilton, a delegate to the Constitutional Convention and a princi-
pal author of The Federalist Papers, put it this way:
"Government is frequently . . . classed under two descriptions — a government
of force, and a government of laws; the first is the defuiition of despotism, (and)
the last of hberty."
The blueprint for self-government created by the delegates to the Constitutional
Convention came under immediate attack. There were more than a few, here and
abroad, who warned that our Constitution embodied too radical a departure from
conventional concepts of government. It was termed impractical, unworkable,
dangerous.
Today the attack continues — for the concept of free men and women governing
themselves for the common good is virtually as radical in the 20th Centurj- as it
was in the twilight of the ISth. And make no mistake — it is radical doctrine!
Our concept of freedom under law is banned, barred, forbidden and feared in
vast areas of the world where might makes right — where suppression wears the
uniform of the police and the robes of justice.
24
In our country today, there are strident voices proclaiming that the same
conditions exist in our land. We are told that American society is "sick" and that
law is used to repress freedom.
This is demagoguer}', pure and simple. It is a slander and a lie.
But still the questions persist: Where are tliese United States today, and where
are we going? How do we as American citizens evaluate ourselves? Do we believe
in our form of government? Does our government care about people? Is our
societ.y out of control? Are the law officers of the nation the tools of an oppressive
ruling establishment?
Well, what are the answers? I want to tell you what mine are.
The great American adventure born two centuries ago has gro'mi stronger
generation after generation.
We are on the threshold of the greatest growth pattern in our history — growth
in the quality of life for all our citizens — growth in our total effort to eradicate
the imperfections in human society (beginning, always, with our own).
We occupy seven percent of the land surface of the earth. We are six percent
of the world's population. We account for almost one-third of the goods and
services produced on earth.
Our national economy is bulwarked by increased earnings and a rising gross
national product.
Production, incomes, employment, business spending, and consumer buying are
all showing sharp increases.
The rate of inflation has been slowed.
We export foodstuffs, medicines, technology, and expertise to help feed,
comfort, and care for millions of men, women, and children around the world.
Material accomplishments, however, do not begin to tell our whole story.
Every citizen of the United States is guaranteed legal rights and protections
of a magnitude not found anywhere else in the world.
All have the promise of individual rights and liberties.
All have an awareness of those rights and liberties.
All have a guarantee of opportunity to full realization of their rights and liberties.
All have the assurance that our Government and body of citizens will support
them in the enjoyment of their rights and liberties.
Advantages such as these help make America the freest and most progressive
society in the world — more than "advantages," realities.
You wouldn't choose to live in any other country. Nor would I.
No, pessimism does not yet reign supreme in these United States.
But there are those who insist that our priceless liberties are being eroded —
that freedom is increasingly in jeopardy across the United States.
Two years ago, a well-known author and educator warned that repression
"comes to us . . . with official sanction and is imposed upon us by officials sworn
to uphold the law."
Who are these officials?
This author identified them as "the Attorney General, the FBI, state and local
officials, the police, and even judges."
Biased as I may be, / reject such an attack — and so do the great majority of
our citizens. The facts are otherwise, and we Americans are not about to accept
myths in their place.
The people of the United States know that the law enforcement profession is
dedicated to safeguarding the rights of all citizens — and that it demands of its
members exacting staiidards of fairness, impartiality, and restraint.
I do not for a moment suggest that abuses of authority are nonexistent among
law enforcement professionals.
Unfortunately, there have been abuses in the past — and as long as it's men and
women involved, there will be recurrences in the future.
But no profession is more zealous in policing its own ranks. We know the risks.
And we know that the confidence of those we serve must be maintained if we are
to discharge the trust and responsibility placed in our care.
As a Nation, we face a crime problem that has steadily been growing since
1955. Today, there are clear signs that the upward thrust of crime is being turned
back.
During the first quarter of 1972, crime registered its smallest increase — one
percent — in 11 years. (And none of us can rest until even that plus one becomes
zero, and then a minus.)
Eighty of our largest cities reported actual decreases in crime for this three-
month period— compared with 22 cities in 1970, and 59 in 1971.
Important successes are also being scored in the counteroffensive which the
law enforcement profession is pressing against organized crime.
25
These successes are being achieved within the provisions of our Constitution
and laws — and with the cooperation and support of the citizens of the United
States, who know that America's peace officers are guardians of their Uves,
their property, and their rights.
Let's look at a vital area of our freedoms — the right to a fair and impartial
trial as guaranteed all Americans by the Bill of Rights.
A slogan coined some weeks ago insists that militant extremists who have been
charged with crimes should be immune from prosecution in our courts of law.
"The only fair trial would be no trial at all," this slogan demands.
This is a "society-be-damned" slogan. It saj^s, in efiect, "Hide the evidence;
gag the witnesses; ignore the victim; create a privileged class under law."
Citizens of the United States rose above such a lopsided system of injustice
centuries ago.
We will not turn the calendar back.
One of the foremost advocates of categorical immunity is an acid-tongued
lawj'er who has warned of "laerverted use" of our courts to "inhibit, terrorize or
destroy persons who . . . have incurred . . . hatred, fear or mistrust."
The same advocate also alleges that our "judicial process" has been used "as
a form of political repression."
He is wrong on all counts — unless we are ready to concede that senseless acts
of violence, including murder, are legitimate forms of -political expression.
Those who define their lawless activity as political expression seek only to
exclude themselves from the legal structure established so long ago under the
Constitution, and from the inevitable consequences of their own acts.
Conduct clearly in violation of the law — regardless of the brand name applied
to such conduct — is still anathema to the preponderant majority of Americans.
The American still believes that the lawbreaker is to be arrested and tried as
prescribed by the law. Guilt or innocence is to be determined in accordance with
Constitutional principles and not by mob rule or pressure group tactics.
Today there are those among us who appear to prefer a life style far removed
from the mainstream of American society and that choice should be protected. But
they demand more.
Their battle cry is, "I want no part of your system, and I intend to destroy it.
But while I push for anarchj-, I will continue to insist on the protection afforded
me by the system that I attack — until it is so weak that it affords protection to no
one."
Yet they will continue to receive protection from the system they attack — from
the Congress, the Courts, the law enforcement profession — even while the same
Congress, Courts, and the men and women of law enforcement agencies work to
protect our legal sj'stem from these anarchists and separatists. We, at least, do
believe in freedom!
But let us not think that our Government of laws is in danger only from those
who openlj^ proclaim their goal to set aside the whole of the legal structure.
There is another enemy as well, less visible perhaps but just as insidious — per-
sons who in their own way weaken our society, damage our leadership principles,
and completely ignore the responsibilities of good citizenship.
Office holders who occasionally compromise principle or a public trust in ex-
change for gifts and favors, businessmen who pad their expense accounts and de-
flate their income tax returns, would be stunned if anyone said they were not
responsible and law-abiding citizens. They are — most of the time.
The workingman who patronizes after-hours bars and neighborhood book-
makers, those who buy merchandise at prices and under circumstances that clearl}^
suggest it is stolen, contribute to the survival of crime in our society — though they
would be aghast at being called criminals.
The president of a corporation who conspires to break the antitrust laws be-
cause it assures a certain profit, the procurement agent who deals in secret kick-
back agreements, may give the appearance of being model members of society and
each undoubtedly seeks to retain that image.
Yet, each of these persons, and myriad others like them who have a cavalier
attitude toward the law when it suits their purpose, attack the society of law from
within.
If the law is to be defended and obeyed except when it is inconvenient, then what
purpose is served? And what have we learned from the history and growth of our
Constitutional democracy?
Man is said to be destroying his own physical environment — almost through
careless disregard. And it should be obvious that man can destroy the social
environment in the same way — by his failure to appreciate the indivisibility of
freedom and the law. To be "law abiding" is no sometime thing!
26
Yes, there is a difference, a vast difference, between the bomber and the bettor,
the conspirator and the cheater. The one blasts, the other chips away. But each
weakens the stature of the law in our society.
The law enforcement officer — the peace officer — ^has the ])rime responsibility to
protect society from those who break or destroy or undermine tlie law.
But our society can never be protected from itself if responsible citizens, by a
subtle change in attitude toward the law, abandon their responsibilities as citizens
when it suits their purpose.
It is the duty of every citizen and the prime responsibility of leading citizens to
be conscious of the continual need for affirmative action to nourish our Govern-
ment of laws.
Everyone realizes the danger of continual attacks upon police officers and the
departments they serve. These attacks erode the capacity of the law enforcement
profession to uphold the peace that law should bring.
This same kind of attack is being made upon the society of law — from within —
by many who take the easy way out, who abrogate their responsibilities as citizens,
who do not care enough to uphold the tradition of our Constitution and its
authors.
Do not look just to the Congress, the Courts, or the law enforcement profession
to protect society from itself.
All of us as citizens have that responsibility. If we bear that responsibility
lightly — and only when it suits us— we jeopardize the society of law just as do the
anarchists, the separatists, the criminal neophytes, and the professional forces of
organized crime.
Our pledge must be to continue to be worthy of our matchless heritage.
Our course as a Nation is unmistakably onward and upward. Time and again
we have proven that freedom under law does work.
Our Government cares about our people. Our police officers are protectors, not
oppressors. Our society is not out of control.
As human beings, we do not claim perfection. But it is an enormous triumph
that man with all his faults dares to reach for the stars. This is his ultimate glory.
The Chairman. Now, the charge has been made that you fired
people for political reasons. Would you care to comment on that?
Mr. Gray. That I have done what, sir? I am sorry.
The Chairman. You fired people for poHtical reasons.
Mr. Gray. I have had no political reason whatsoever to fire anyone
in the Federal Bureau of Investigation. I did it for entirely different
reasons, and if the committee would desire, if the chairman would
desire, I would submit a detailed accounting of every resignation or
retirement that has occurred in the Federal Bureau of Investigation
since I came in as Acting Director.
The Chairman. That is a decision that the committee will have to
make.
When did you first hear of the Watergate affair?
Mr. Gray. It was a Saturday, June 17. I am trying to think. I
think I had already gotten into the automobile in Los Angeles. I was
supposed to leave Los Angeles at 9 :30 that morning and go down to
Santa Ana to deliver the commencement address at Pepperdine
University Law School. I think I had already gotten into the auto-
mobile and was en route and when we arrived at Santa Ana, I believe
that the resident, the senior resident agent there, gave me the first
indication. Yes, "Between 11 a.m. and 11:30 a.m. Pacific daylight
time resident agent, Santa Ana, briefed Mr. Gray." That is the
first indication that I had, any information I had regarding Watergate.
The Chairman. What instructions, if any, did you give?
Mr. Gray. Right at that time, I didn't give any instructions to
that individual. I waited until I could get to a telephone and I called
my No. 2 man, Mr. Felt, W. Mark Felt, and I obtained additional
information from him. That was at 12:04 p.m. Pacific daylight
27
time and 3:04 p.m. Eastern daylight time, and I got additional
information from him at that time regarding the facts and circum-
stances, and they were coming in pretty fast. I asked him if we really
had jurisdiction in this matter and if we were in it up to the hilt, and
he told me that the case was first, as I recall now, was first considered
to be a burglary in the early morning hours.
Then there was some thought it was a bombing and then electronic
devices were seen there. Our people knew instantly this was an inter-
cept of communications case, or at least we thought it was, and we
started in right away.
The Chairman. What were your instructions?
Mr. Gray. I told him to go to the hilt and spare no horses.
The Chairman. Was that done?
Mr. Gray. Yes, sir, that has been done and those instructions were
repeated. You know these were just the first phone calls. I had ad-
ditional phone calls that day, those instructions were repeated. Those
instructions were also related by Mr. Felt to the Attorney General of
the United States, who concurred in my decision to conduct an aggres-
sive investigation. Certainly it was obvious to me as the facts began
to come in, and particularly at about, well, it was later on that evening
when I learned the identity of one of these indi\dduals. It was 3 :45 p.m.
Pacific daylight time that I was called and actually FBI headquarters
advised the Los Angeles office to ad^^se as to AlcCord being identi-
fied as an ex-FBI agent and security officer for the Committee to
Reelect the President, and when I got that information I knew that
we were in a situation that could have all kinds of possibilities. I
didn't know quite what we had hold of, but I was not such a naive
jackass as to think that the credibility of the Federal Bureau of
Investigation, as an investigative agency, was not going to be on the
line in this one.
The Chairman. You mean it would be on the line.
Mr. Gray. That is right. It would be right on the line.
The Chairman. Well now, what kind of investigation was con-
ducted? Did you direct it?
Mr. Gray. I directed it from the standpoint that I set the tone,
and time and again during the days that ensued and during the
telephone conversations that followed I emphasized the aggressive
nature of the investigation vv'e must conduct. At all times the Attorney
General concurred in that, a,nd that was the type of investigation
that we conducted. In setting out the instructions to the Washington
field office, which was the office of origin, and in all the other instruc-
tions that went out, we had the general instructions to the effect
that this was to be given the highest priority, to be i^ursued with
vigor. The special agent in charge was to take it under his personal
control, and was to utilize whatever special agents were necessary
to promptly pursue the investigative leads sent to that particular
field division.
The Chairman. Now, did you, or anyone else to your knowledge,
state who should be checked on, who should not be checked on?
Mr. Gray. No, sir, because this was a very, very fast developing
investigation, and I can state that there were no restrictions or limi-
tations placed. Really, you have the feeling sitting in my position
that when you push that button and whenever you say give it an
28
aggressive and, in the words of the FBI, full court press, they are
going all out, and that is the way they went.
The Chairman. What is your policy now, or what would be your
policy, if committee members, and committee members only, were
desirous of seeing that file?
Mr. Gray. I have taken a position, Mr. Chairman, from day 1 —
and even though I am well aware of the precedential nature of the
statement I am about to make, and even though I am well aware it
could be interpreted to shatter precedent, I feel that this situation
is so unique that it can be distinguished from any other, so that the
offer I am about to make cannot be utilized later on as an entrance
way into the files of the Federal Bureau of Investigation which I
A\dll continue to resist — but I am prepared to offer, and I have been
prepared from the inception, that any Member of the U.S. Senate,
this committee or any Member of the U.S. Senate, who wishes to
examine the investigative file of the Federal Bureau of Investigation
in this matter may do so, and I will provide knowledgeable, experi-
enced, special agents to sit do^vn with that Member and respond to
any question that Member has.
The Chairman. There would be present an official of the Bureau
at all times?
Mr. Gray. Correct, sir, that is what I am saying.
The Chairman. That no staff member would be permitted?
Mr. Gray. No, su', I would not go beyond the offer that I have
made because of the nature of these records.
The Chairman. I certainly think — now these are the raw files?
Mr. Gray. They are, sir. They are memorandums, the whole works,
we have nothing to hold back.
The Chairman. I certainly tliink there should be no leaks, and I
agreed mth Mr. Hoover, and certainly agree with you, that the raw
files of the FBI should never be publicized. I have seen too many.
Mr. Gray. I certainly agree with you, Mr. Chairman, because the
integrity of those files, I think, is one of the most sacred trusts com-
mitted to us if we are to carry out the mission given to us by the
Congress and the President.
The Chairman. Senator McClellan.
Senator McClellan. Thank you, Mr. Chairman.
I Avill defer the questions I have at this time. But I want to express
my appreciation to Mr. Gra}^ for a very frank, candid and informa-
tive and, I think, a helpful statement that he has made here in the
opening of these hearings. On the basis of that statement, of course,
he would be entitled to confirmation but since there are challenges
and accusations which, if proven, might be worthy of consideration,
I will withhold any pledge of support of his confirmation. But I do
want to state that I have noted \\dth interest and approval some of
the changes he has made in the brief time that he has been Actmg
Director of the Bureau, and I commend him for apparently being
aggressive and mo^dng in and trying to examine, thoroughly examine,
the processes and the traditions and procedures of this institution
and making changes that do, in my judgment, bring about some
improvement. It will never be perfect, but it is an institution in our
Government that certainly serves every citizen in this countr3^ But
there should be no favoritism in it; there should be a dedication to
the functions and to the objectives of those functions which it is
authorized to perform.
29
I will withhold, Mr. Chairman, any questions at this time. I am
sure Mr. Gray will be back with us before the proceedings are over
and at that time I will have, I think, some questions based upon the
accusations against him.
Mr. Gray. Thank you, Senator McClellan, and I appreciate
your position.
The Chairman. Senator Ervin.
Senator Ervin. Mr. Gray, as I understand, you joined the personal
staff of Vice President Richard Nixon in June 1960?
Mr. Gray. Yes, Senator Ervin. I retired from the Tj.S. Navy on
June 30, 1960, and went over to room 361, Senate Office Building,
which was the office of the then Vice President, Richard Nixon.
Senator Ervin. How long did you remain a member of the personal
staff?
Mr. Gray. From shortly after June 30, 1960, until about January 6,
1961. I am not sure of that January 6 date, but I know I went back
to Connecticut to practice law in early January. I may have a slippage
on that date but that is pretty close.
Senator Ervin. It is understandable that a person cannot remember
a specific date.
Did you continue in the practice of law in Connecticut until you
became Executive Assistant to Robert H. Finch, Secretary of the
Department of Health, Education, and Welfare in January 1969?
Mr. Gray. Yes, sir; I did.
Senator Ervin. And you remained with him until you became
Assistant Attorney General of the Linited States in charge of the
Civil Division and Director of the Office of Alien Property, Department
of Justice in December 1970.
Mr. Gray. It is correct. Senator, that I joined the Justice Depart-
ment in December 1970. I had left HEW in January of that year to
resume private practice.
Senator Ervin. Did you remain in that position until you were
appointed Acting Director of the FBI?
Mr. Gray. I had two positions later on. On February 15 of 1972,
I was nominated to be Deputy Attorney General. I became Deputy
Attorney General-designate, and Attorney General Kleindienst and
I began a transition period regarding the duties of his office, and I
was serving as Deputy Attorney General-designate and as Assistant
Attorney General in charge of the Civil Division and Director of the
Office of Alien Property until I was named Acting Director of the
FBI, sir.
Senator Ervin. Now, as I understand it, you made 16 speeches
between July 13, 1972, and the general election on November 7,
1972, is that correct?
Mr. Gray. The numbers I am not sure, but if j^ou are taking them
from the exhibit, Senator, and counting off, why I will accept your
count on them. I have not counted the number of them m that
period.
Senator Ervin. Would 3^ou mind just stating very briefly the
general type of theme that you emphasized in those speeches?
Mr. Gray. I think, Senator, I would have to say that for the first
time in m}^ life as an American, I had a forum where I could get up
and talk about America and somebody would listen to me. Basically I
would say the theme of those speeches is that America is a great and
91-331 — ^73 3
30
good land and a land populated by good people. Those speeches were
made with pride in my heart for our Nation. They were made along
constitutional lines because I am interested in constitutional history,
always have been, and they were made along lines of law enforce-
ment. But I can say to this committee under oath that I did not
design, write, plan or intend any one of those speeches to be political
speeches and as I said in my opening statement, I would submit to
the fair consideration and judgment of the members of this committee
and the Members of the U.S. Senate as to whether or not I am correct.
You may look at them differently^ but I am telling you how I entered
upon them.
Senator Ervin. I infer that the speeches 3'ou made during this
time might be designated as patriotic speeches, extolling the virtues
of America, and speeches dealing with law enforcement problems?
Mr. Gray. That is correct, sir.
Senator Ervin. Now, in the speech that jow put in the record,
"Freedom Under Law," which j^ou made before the City Club of
Cleveland, Ohio, on August 11, 1972, you stated:
Our national economy is bulwarked by increased earnings and a rising gross
national product.
Production, incomes, emploj-ment, business spending, and consumer buying
are all showing sharp increases.
The rate of inflation has been slowed.
We export foodstuffs, medicines, technology, and expertise to help feed, comfort,
and care for millions of men, women, and children around the world.
Now a person might place an interpretation on that passage, in
view of the particular issues that had been joined between President
Nixon and Senator George McGovern, that it was calculated to help
President Nixon and hurt Senator McGovern, coidd he not?
• Mr. Gray. I think someone could draw that conclusion but I
think properly to interpret it and place it in perspective, you have to
see what came before it. I was addressing myself to those voices in
our land who say that American society is sick and that law is used to
repress freedom, and I characterized that as demagoguery, pure and
simple. Then I went on to say:
But still the questions persist : Where are these United States today, and where
are we going? How do we as American citizens evaluate ourselves? Do we believe
in our form of government? Does our government care about people?
The Chairman. Speak a little louder, please,
Mr. Gray. I am sorry. [Reading:!
The great American adv'enture born two centuries ago has grown stronger
generation after generation.
We are on the threshold of the greatest growth pattern in our history —
And I went on along those lines and then I tried to show the positive
exam.ples, but certain!}^ I would have to admit to j^ou that an individ-
ual could draw that other conclusion.
But I ^^'ill sav to you again, Senator Ervin, under oath, that this was
not planned, designed, or intended to be a political speech and I don't
think anybody who heard it in Cleveland interpreted it as a political
speech.
Senator Ervin. I infer from your testimony that you give the com-
mittee your assurance that neither this speech nor am^ other speech
you delivered during that time was intended to have political conse-
quences?
31
■ Mt. Gray. I gave that assurance to this committee, and I gave thafc
assurance to m3self then and I do now. I did not do it and I would noi
do it. I would be in flagrant violation of the instructions from the
President of the United States.
Senator Ervin. On October 27, 1972, you publicly stated in an
official release that since around 1950 the FBI has gathered and main-
tained so-called biographical data on Members of Congress and candi-
dates for Congress. When did you and how did you first learn of this
practice?
Mr. Gray. Senator Ervin, j^ou will recall that you sent me a letter
on this subject, a very thorough letter. In fact the questions were
designed to probe, and the}^ did probe, and I sent a response to you. I
have not asked 3^our permission but I would now ask your permission
and the permission of the chairman that a copy of this letter be
inserted in the record.
Senator Ervin. You made a ver^^ full response to my request for
information on this point. I think it would be illuminating and would
obviate some of ni}^ questions if my letter to Air. Gray and his reply
to me were inserted in the record, Mr. Chairman.
The Chairman. It ^^^ll be admitted at this point.
Mr. Gray. Thank you, sir.
(Mr. Gray subsequently submitted the following documents for the
record :)
United States Senate,
Committee on the Judiciary,
Subcommittee on Constitutional Rights,
Washington, D.C., Noveviher 3, 1972.
Hon. L. Patrick Gray III,
Acting Director, Federal Bureau of Investigation,
Washington, D.C.
Dear Mr. Gray: As you know, in the course of the Subcommittee's study of
government data collection, I have sent a number of lettci-s, beginning in June,
1970, asking the Justice Department and the FBI to detail all of their programs
of data collection respecting individuals not employed bj' the Federal Govern-
ment, and certain programs invi)lving those persons as well. Since the responses
I have received so far from the Department and the Bureau were presumably
■intended to be complete replies to my requests, I am concerned about the existence
of yet another program, that respecting Congressmen and Senators, which was
noi alluded to in past correspondence from the Department or the Bureau.
In any case, I am extremely disturbed by press reports and a statement disr
tributed by your office on October 27 concerning a Bureau program involving the
collection of information on incumbents and candidates for federal office. Although
the reports are contradictor}' and extremely sparse in detail, it appears that the
Bureau has regularly been compiling information on elected Representatives and
Senators and on their opponents for decades. The statement and other documents
released from your office states that the practice in one form or another started as
far back as 1950, and presumably had two purposes; to assist the Bureau in its
Congressional relations and to aid in protecting the persons concerned against
"violent offenses" against them.
These stated justifications require elaboration. It is my understanding that the
Bureau, as an agency within the Justice Department, relies on the Attorney
General's office for its Congressional relations. And, to my knowledge, crimes
against federal legislators were not made federal offenses uncil 1968. In any case,
it is not immediately apparent how the program could have assisted the Bureau
in performing either of these two functions.
Because of these and other unresolved issues surrounding the program, I shoul<|
like your response to the following questions:
1. When was the jirogram begun? Was it instituted by formal or informal direo;-
tive? By whose order in the Bureau? the Justice Department? elsewhere? Pleas?
Bupply copies of the directives wliich ordered the initiation of this program. Please
32
supply copies of all Departmental and Bureau directives, orders, regulations,
"routing slip directives," and other written instructions describing the program,
its purposes and the responsibilities of Bureau agents in carrying it out, including
those of January 13, 1972, August 7, September 13 and September 19, 1972.
2. List the persons or categories of persons about whom information was collect-
ed under the program. Please list separately those members of the 92nd Congress
about whom information was and was not collected under this program. List
separately those nonincumbent candidates for federal office about whom informa-
tion was and was not collected. What has been the policy with respect to the dis-
posal or destruction of information collected upon persons after they are no
longer Members of Congress, or candidates for office? Is the information retained
or destroyed? If the information is retained, how many separate individuals had
files maintained on them in the Bureau as of October 27? What was the reason for
retaining information on persons no longer Members of Congress or candidates?
3. Under what authority was it initiated and conducted? Under what authority
has the Bureau been charged with investigating "violent offenses" committed
against each of the categories of persons included under the program before 1968?
after 1968? Please supply copies of Departmental and Bureau regulations under
which it was authorized, together with citations and copies of the statutory and
other authority from which the authority stems.
4. Please describe in detail the types of information collected, the sources relied
upon, and the methods used for collecting the information. Include, of course,
both covert and overt collection methods. Please supply copies of all instructions
to Bureau employees governing the kinds of information desired, and methods of
collecting such information. Please explain the terms "readily available sources,"
"reference publications," "local files" and "local publications," and identify rep-
presentative examples of each. What information in "local files" was used, and
how was it collected? What kinds of biographic data was collected? What sources,
not readily available to the public or not published, were used. Please submit
copies of representative "dossiers" or collections of information on incumbents
aiid candidates prepared under this program, suitably sanitized to protect the
identity of the individuals involved, but in sufficient detail to enable the Sub-
committee to determine the scope, methods, and contents of the program.
5. Please describe the uses to which the information was put, both as a matter
of regulation and as a matter of tradition or practice. Please submit copies of all
regulations, directives or instructions governing use and access to this information.
List also the names or titles of all individuals within the Bureau, the Justice
Department, and other government offices, including the White House, who were
authorized or who in practice actually did have access to such information from
time to time. List also all persons by name or title not connected with the above
offices, who were authorized or did, in fact, have access to such information.
6. Please describe how this information was stored or maintained. For example,
was it in field offices or in Washington Headquarters; in separate dossiers, or as
part of other records such as the "Crime Records;" separate from the general
files or as part of them; in manual files or in other form?
7. Please describe your efforts since taking office to determine the existence of
such a program. Did you inquire into the possible existence of such a program
prior to this weekend? What was the result of your inquiry? To what do you
attribute the discrepancy, if any, between the results of your earlier inquiry and
the information which has just come to light? Do you feel the inquiry or the reply
was inadequate? Do you plan anj^ administrative action as a result? If so, what?
8. What will become of the program in question? Please submit copies of aU
directives and instructions which will govern future collection and retention of
information on elected federal officials and other persons subject to this program.
Will the existing files be destroj^ed? Please state when and in what manner.
Will any copies be retained, either by the Bureau or by any other officer or official
of the Government? Are anj^ copies of such files held elsewhere than in the Bureau,
to your knowledge? Will subjects of these files be informed of the existence or
contents of files on them, or be permitted to review them prior to their destruction?
9. Does the Bureau have any program of collecting information on federal
elected officials, other than the one under inquiry? If so, please answer the above
questions for each such program. Are similar programs in effect for candidates
of other federal offices, either elected or appointed? For state offices, such as
governor or state representative, or for local offices? If so, please answer the above
questions for each such program.
I am also disturbed about press reports of requests from members of the White
House office, John Ehrlichman for one, that the Bureau collect and supply
33
information to assist in the presidential campaign. These reports refer to an order
issued in your name on September 8 and returnable on September 11. The report,
in Time magazine of Monday, October 30, is enclosed.
I would appreciate a detailed response to the allegations contained in this
article, plus copies of the supposed order and any similar ones issued during the
time you have been Acting Director. I would also appreciate copies of any other
requests, oral or written, from officials in the Justice Department, the White
House, or elsewhere in the Executive Branch for information of a similar nature
or for a similar purpose, whether or not the request was compUed with. Please
include a description of the Bureau's response in each case, together with copies
of relevant documents, directives, etc.
I appreciate that the above responses may take some time to prepare. Under
the circumstances, I know you can understand the importance of a prompt and
comprehensive reply to this inquiry. May I request that you respond as quickly as
possible with the information you have readily at your command, saving further
replies as more information becomes available.
With kindest wishes,
Sincerely,
Sam J. Ervin, Jr.,
Chairman.
January 12, 1973.
Hon. Sam J. Ervin, Jr.,
U.S. Senate, Washington, D.C.
Dear Senator Ervin: I regret that my illness followed by surgery has delayed
this response to your letter of November 3, 1972. Also, I am grateful to have this
opportunity to set forth the facts concerning the reports that for some years the
FBI has been collecting biographical data on Congressional candidates.
In the release I made concerning this particular program on October 27, 1972,
I stated it was being discontinued because it is not essential to FBI operations,
and "I believe it is obvious that it can be misinterpreted easily as a program to
investigate Congressmen and Congressional candidates." A copy of that release
is enclosed for your ready reference.
Not only was the program misinterpreted, but so was my release. For example,
the pages from "Time" magazine of November 6, 1972, which you enclosed
with your letter contained the following paragraph:
"Gray revealed last week that he is discontinuing a 22-year FBI practice of
maintaining biographical data on Congressional candidates. He said that the
information had been used mainly to help check out any threats made against
them."
Neither of those sentences is accurate. I did not say the FBI would stop main-
taining biographical data on Congressional candidates. Such a statement would
imply that FBI personnel could not even maintain copies of the "Congressional
Directory," copies of "Who's Who," or even daily newspapers which contain
biographical data on Congressional candidates. Neither did I say that the infor-
mation had been used mainly to check out threats made against the candidates.
I stated the purpose of the program was to provide briefing material for FBI
officials who might desire it before calling on newly elected Congressmen and
Senators, adding that later it became apparent the information could be of use
in investigations dealing with oflFenses against Members or Members-elect of
Congress under the provisions of Public Law 91-644.
A number of the news accounts I saw concerning my announcement of October
27, 1972, contained implications that the FBI was compihng secret dossiers on
Members of Congress and the inference could easily be drawn from these accounts
that there was some sinister motive involved. The FBI's record, I believe, leaves
no doubt that it has been in the forefront of protecting individual freedoms rather
than trying to encroach upon them.
Your understanding that the FBI relies on the Department of Justice for its
Congressional relations is accurate insofar as legislative matters are concerned;
however, due to the many inquiries and requests for information which we receive
from Members of Congress, it has been necessary to maintain a Congressional
Services Unit within the FBI to respond to these requests Assaults on Federal
legislators were not made Fedcx-al offenses until 1971; however. Federal legislators,
like all citizens have been covered for many years under laws such as those regard-
ing kidnapping and extortion. But let me reiterate, the information collected under
the program in question was gathered to assist FBI officials responsible for
rendering services to the Congress.
34
_• Before responding to your questions, let me describe for you tlie program that
I ordered discontinued and how it operated. I beheve this will greatly enhance
the understanding of this matter.
Around 1950, the officials of the FBI then responsible for dealing with the
Congress decided it would be most beneficial to them if they had some biographi-
cal data on newly elected Members and a knowledge of any prior contacts by
FBI representatives with these new Congressmen and Senators. Initially, they
orally requested FBI field office officials to furnish the desired information. In
1960, the practice was begun of requesting such information bj' sending routing
islips to the various FBI field offices. This has been followed each election year
since that time.
■ The information was gathered for our own internal use and not in response
to anjr regulation or statute. At first, information was sought only on nonin-
cumbent candidates for Congress. In 1960, the requests were expanded to include
lionincumbent candidates for Governorships, since FBI officials also felt their
contacts v.-ith Governors could be enhanced by some prior knowledge of the
individual's background.
No investigation was condnded to secure this information, and no investigative
file was opened either in the field o_ffices or at FBI Headquarters. The biographical
information was collected by individual Agents covering the home area of the
candidate. It was gathered from local newspapers, campaign brochures, and
reference books such as city directories or books which publish biographical
information — all sources readily available to the general public. This information
was augmented by a summary of any data already in the files of the field office.
This might include correspondence exchanged with the candidate; memoranda
concerning personal contacts; results of investigations involving the candidate,
either as a subject, a victim, a witness, or a reference; or information voluntarily
submitted to the FBI.
The material collected by the field office was sent to FBI Headquarters where
it would be held until the results of the election were known. If the candidate
was defeated in his bid for office, all of the material submitted by the field office
would be promptl}' destroyed and no record of it kept. If the candidate was suc-
cessful, a memorandum summarizing the material submitted by the field office
would be prepared. Into this summary memorandum also would be incorporated
a brief abstract of any information already contained in the files at FBI head-
quarters.
Here again, the information might include correspondence exchanged with
the candidate ; memoranda concerning personal contacts ; results of investigations
involving the candidate, either as a subject, a victim, a witness, or a reference;
or information voluntarily submitted to the FBI. The raw material forwarded
by the field office would be destroyed, and only the summary memorandum would
be retained and incorporated into FBI files.
Now to your specific questions.
1. When was the program begun? Was it instituted by formal or informal
directive? By whose order in the Bureau? the Justice Department? elsewhere?
Please supply copies of the directives which ordered the initiation of this program.
Please supply copies of all Departmental and Bureau directives, orders, regula-
tions, "routing slip directives," and other written instructions describing the
program, its purposes and the responsibilities of Bureau agents in carrying it
out, including those of January 13, 1972, August 7, September 13 and September
19, 1972.
, The program was begun around 19.30 on an informal basis and apparently on
oral instructions of a former Assistant to the Director. Copies of the only written
instructions we are able to locate concerning this program are enclosed. These
include the routing slips sent to various FBI field offices this year under dates of
January 13, August 7, September 13, and September 19, 1972, and routing slips
sent to various FBI field offices in 1970 under dates of July 12 and October 6,
1970. The latter two items were retained only as samples, and no copies of such
communications to the field offices sent out in prior years have been retained.
2. List the persons or categories of persons about whom im'ormation was
collected under the program. Please list separately those members of the 92nd
Congress about whom information was and was not collected under this program.
List separately those nonincumbent candidates for federal office about whom
information was and was not collected. What has been the policy with respect
to the disposal or destruction of information collected upon persons after they
axe no longer Members of Congress, or candidates for office? Is the information
35
retained or destroyed? If the information is retained, how many separate indi-
viduals had files maintained on them in the Bureau as of October 27? What was
the reason for retaining informati on on persons no longer Members of Congress
or candidates?
Information was sought under this program on major nonincumbent Congres-
sional candidates. Biographical data was collected on each Member of the 92nd
Congress who had not previoufcly served in the Congress. No data was collected
on incumbents since biographical data on them is published in the "Congressional
Directory." Congressional candidates were the only candidates for Feaeral office
on whom biographical data was collected. If the candidate was defeated, no
information concerning him collected under this program was retained, the in-
formation being promptly destroyed as soon as results of the election were con-
firmed. Data collected on successful candidates was summarized in a memorandun^
prepared for the information of FBI officials which subsequently became a part
of the FBI's general files. Preparation of such memoranda was started in late
1954. The so-called "raw material," which generally was in the form of newspaper
clippings, campaign brochures, or excerpts therefrom, was never made a part of
FBI records and has been destroyed. Information collected in this program on all
present Members of Congress as well as former Members goirig back about 20
years is maintained in FBI records. The FBI does not have authority to destroy
information contained in its records, and this a])plies whether the person is a
Member of Congress, a candidate, or a private citizen.
3. Under what authority was it initiated and conducted? Under what authority
has the Bureau been charged with investigating "violent offenses" committed
against each of the categories of persons included under the program before 1968?
After 1968? Please supply copies of Departmental and Bureau regulations under
wliich it was authorized, together with citations and copies of the statutory and
other authority from which the authority stems.
The program was not in response to any statute or regulation. It was begun
informally on oral instructions from an official of the FBI whose purpose was to
obtain biographical data to assist him and other FBI personnel in carrying out
their responsibihties in dealing with INlembers of Congress. As to the authority
under which the FBI has been charged with investigating violent offenses com-
mitted against persons included under the program, I already have referred to
Public Law 91-644 enacted in 1971. Also, as I mentioned earher. Members of
Congress and candidates have been covered, as have all persons, under Federal
laws dealing with such crimes as kidnaping and extortion. As previously indicated,
the only written instructions we were able to locate concerning this program are
the routing slips sent out to the field offices in 1970 and 1972.
4. Please describe in detail the types of information collected, the sources relied
upon, and the methods used for collecting the information. Include, of course, both
covert and overt collection methods. Please supply copies of all instructions to
Bureau employees governing the kinds of information desired, and methods of
collecting such information. Please explain the terms "readily available sources,"
"reference publications," "local files" and "local pubhcations," and identify repre-
sentative examples of each. What information in "local files" was used, and how
was it collected? What kinds of biographic data was collected? What sources, not
readily available to the public or not published, were used. Please submit copies
of representative "dossiers" or collections of information on incumbents and
candidates prei^ared under this program, suitably sanitized to protect the identity
of the individuals involved, but in suificient detail to enable the Subcommittee
to determine the scope, methods, and contents of the program.
The information requested from the field offices was biographical in nature
together with a summarization of any data which might already be in the field
office files. The biographical data came from news articles, campaign literature,
and standard reference publications such as "Who's Who" and Martindale-
Hubbell. Frequently, the information was submitted merely by forwarding copies
of the news articles or campaign literature to FBI Headquarters or by copying
the pertinent data from the news articles or the reference publications. No covert
collection methods were used. The routing slips previously referred to contain all
the instructions sent to the field offi.ces regarding this program. "Readily available
.sources" means those public sources which are available to any citizen, such as
newspapers, magazines, and campaign literature. "Reference publications"
means such items as "Who's Who," Martindale-Hubbell, and city directories.
"Local files" refers to the files of the FBI field offices. "Local publications" means
newspapers and other periodicals published in the local area. Information la
36
"local files" could be the results of prior investigations concerning the candidate
in which he may have been a subject of the investigation, the victim of some crime
being investigated, or a witness or reference interviewed. The information could
concern previous contacts between the candidate and FBI representatives, or it
could be information volunteered to the FBI. The kind of biographical data col-
lected is the same type as that which is published about Members of Congress
in the "Congressional Directory," and I know of no sources, except for local and
Headquarters FBI files, not readily available to the general public which were
used in the collection of this data. I am not at liberty to furnish copies of the
summary memoranda prepared from the material collected under this program;
however, I can advise you that I am giving serious consideration and study to the
ultimate disposition of the summary memoranda prepared as the end product of
this Congressional Relations program.
5. Please describe the uses to which the information was put, both as a matter
of regulation and as a matter of tradition or practice. Please submit copies of all
regulations, directives or instructions governing use and access to this information.
List also the names or titles of all individuals within the Bureau, the Justice
Department, and other government offices, including the White House, who were
authorized or who in practice actually did have access to such information from
time to time. List also all persons by name or title not connected with the above
offices, who were authorized or did, in fact, have access to such information.
As indicated, the primary use of the information gathered under this program
was to assist FBI personnel responsible for contacts with the Congress. It was
helpful to them to know what, if any, prior experience the newly elected Members
might have had concerning law enforcement activities or of any prior contacts
they may have had with FBI personnel. Likewise, it was important to know if the
new Member had been the subject of any prior FBI investigation, such as an ap-
plicant investigation, or had been the victim of any crime investigated by the
FBI. There are no special regulations or instructions governing the use of and
access to this information. All FBI personnel have access to information in the
files of the FBI if they need the information in connection with their official
functions. No information in FBI files is available to anyone outside the FBI
unless through official dissemination to another Executive Branch agency as part
of the results of an investigation or in answer to an official inquiry regarding a
specific individual. Our dissemination policy is the same with respect to all per-
sons whether they be public officials or private citizens — the information is dis-
seminated outside the FBI only in connection with official investigations or in
response to official inquiries. Therefore, it is not possible to identify by name or
title all of the individuals who might have access to such information.
6. Please describe how this information was stored or maintained. For example,
was it in field offices or in Washington Headquarters; in separate dossiers, or as
part of other records such as the "Crime Records;" separate from the general
files or as part of them; in manual files or in other form?
The information gathered under the program in question was recorded in a single
summary memorandum which was incorporated into the general records of the
FBI at FBI Headquarters.
7. Please describe your efforts since taking office to determine the existence of
such a program. Did you inquire into the possible existence of such a program
prior to this weekend? What was the result of your inquiry? To what do you
attribute the discrepancy, if an.y, between the results of your earlier inquirj^ and
the information which has just come to light? Do you feel the inquiry or the reply
was inadequate? Do you plan any administrative action as a result? If so, what?
I must assume that this question is directed to the statement made by me on
numerous occasions to the effect that I had not located any secret files or political
dossiers within the files of the FBI. I did not specifically ask the Assistant Director
of the Crime Records Division if his Division maintained .secret files or political
dossiers, nor did I ever ask anyone in the FBI if we maintained files on Con-
gressional or other political candidates. My inquiries were directed solely to the
maintenance of secret files or political dossiers and these were made to all mem-
bers of the Executives Conference of the FBI on several occasions when the sub-
ject came up for discussion and to the senior officials of the Files and Communi-
cations Division of the FBI on numerous occasions.
No one of us in the FBI ever considered that the summary memorandum, the
product of the program I terminated on October 27, 1972, constituted a secret
file or a political dossier. It is for this reason that I believe the existence of this
program was not reported to me in response to my inquiries. I have ordered a
thorough inquiry into this matter, and I am now in the process of completing
my review of the entire matter.
37
8. What will become of the program in question? Please submit copies of all
directives and instructions which will govern future collection and retention of
information on elected federal officials and other persons subject to this program.
Will th^ existing files be destroyed? Please state when and in what manner. Will
any copies be retained, either by the Bureau or by any other officer or official of
the Government? Are any copies of such files held elsewhere than in the Bureau,
to your knowledge? Will subjects of these files be informed of the existence or
contents of files on them, or be permitted to review them prior to their
destruction?
The program was discontinued on October 27, 1972, and all information which
had been collected under it this year was promptly destroyed. My instructions in
this regard were issued orall^y, not in writing. I am giving serious consideration
and stud}' to the ultimate disposition of the summary memoranda prepared based
on the information collected under this program.
9. Does the Bureau have any program of collecting information on federal
elected officials, other than the one under inquiry? If so, please answer the
above questions for each such program. Are similar programs in effect for
candidates of other federal offices, either elected or appointed? For state offices,
such as governor or state representative, or for local offices? If so, please
answer the above questions for each such program.
The FBI has no program to collect information on Federal elected or appointed
officials and this particular program has been terminated. Where there is a
requirement for an official investigation, the FBI will collect such information,
such as for a Presidential appointment. As previously indicated, the Congressional
program was expanded in 1960 to include nonincumbent candidates for Governor;
however, this Congressional program has been terminated.
In response to the allegations in the "Time" Magazine article you referred to
in your letter, I enclose for your information a copy of a memorandum setting forth
the facts and circumstances as we know them.
Sincerely yours,
L. Patrick Gray, III,
Adijig Director.
U.S. Department of Justice,
Federal Bureau of Investigation,
Washington, B.C., October 27, 1972.
For immediate release.
"The FBI is not investigating and has not investigated Members of Congress
or Congressional candidates," Acting FBI Director L. Patrick Gray, III, de-
clared today. "The only exceptions have been where a Member was alleged to
have violated a Federal law or where the Member is being considered for a top-
level Government appointment.
"It has just come to my attention," he said, "that since 1950 personnel at FBI
Headquarters responsible for dealing with Congress have, as a matter of routine
practice, gathered biographical data on major candidates for the House of Repre-
sentatives and the Senate from newspapers, magazines, campaign literature, and
various reference publications. FBI Field Offices from time to time have been
requested, by means of a routing slip directive, to assist bj^ providing information
that was readily available from local files and local publications.
"Initially, the purpose of this was to provide briefing material for FBI officials
who might desire it before making a call on a newly elected Congressman or
Senator. In short, the routine was a part of the Congressional relations program
of the FBI. Later, following the enactment of Public Law 91-644 dealing in part
with violent offenses against Members of Congress and Members of Congress-
Elect, it became apparent that such information would be of immediate use in
following investigative leads arising in the event such an offense were to be
committed against a Member or a Member-Elect of Congress.
"I became aware of this program," Mr. Gray continued, "as a result of inquiries
alleging that an FBI Agent in Lorain County, Ohio, had been making inquiries
about the background of the Democratic candidate for Congress in Ohio's 13th
District. This Agent's inquiries were not authorized, and were in violation of
specific instructions that the gathering of information on Congressional candi-
dates is to be made from readily available published sources only, and not through
any outside inquiries. The FBI is conducting an internal administrative investi-
gation of this Agent's actions to determine why this instruction was not followed.
38
"At the same time," Mr. Gray continued, "because the program of gathering,
briefing material on Congressmen and Congressional candidates has been brought
to my attention through this incident, I have given consideration to the need for
such a program. Such a program is not essential to FBI operations, and I believe
it is obvious that it can be misinterpreted easil.v as a program to investigate
Congressmen and Congressional candidates. Therefore, I have decided to termi-
nate this program as of today."
FBI Routing Slips
January 13, 1972.
Re Coming elections.
Primaries will be held this year in each state to nominate candidates for Congress
(House and Senate) and some Governors. Pertinent background information
and data from your files on major non-incumbent candidates in your district
should be forwarded informally by routing slip, not letter, to Crime Records
as soon as they are nominated. Under no circumstances should you make outside
inquiries such as checks of credit bureaus or newspaper morgues. Public source
material readily available to .you and data from your files will suffice. Continue
to furnish pertinent data as it develops between the primary and general election.
Also be alert for any special elections to fill Congressional vacancies and submit
pertinent data on the major candidates before the election date. These matters
must always be handled with extreme discretion to avoid the implication that we
are checking on candidates.
August 7, 1972.
Re Bu r/s January 13, 1972: Coming elections.
By r/s of 1-13-72 you were requested to furnish pertinent background informa-
tion from public sources as well as data from your files regarding nonincumbent
candidates for Congress. It has now been over a month since the primary in your
state was held, and we have not received the requested information. Please
submit this information within three weeks from the date of this r/s. Make no
outside inquiries such as checks of credit bureaus or newspaper morgues concern-
ing this matter.
September 13, 1972.
Re Coming elections.
Attached is a copy of the routing slip sent your office regarding nonincumbent
candidates. Information has not been received from 5"our office although it is
noted the primary in your state has been held. Please submit the necessary
information to reach Crime Records Division by 10-1-72.
September 19, 1972.
Re Coming elections.
Attached is a copy of the routing slip sent your office regarding nonincumbent
candidates. It is noted the primary in your state has been held. Please submit the
necessary information to reach Crime Records Division by 10-9-72.
August 12, 1970.
Re National Elections Crime Research Section.
Primary elections have been or are being conducted in each State to choose
candidates for the forthcoming November elections for all House members and
for certain Senators and Governors.
You are requested to furnish background data and any information in your
files re major nonincumbent candidates for Senate, House and/or Governor in
those districts covered by j'our office. This matter should, of course, be handled
extremel.y discreetly and the information should be submitted to the Bureau on
a strictly informal basis as soon as the pertinent data is available.
October 6, 1970.
Re National Elections Crime Research Section, re my routing slip Aug. 12, 1970.
Inasmuch as all primary elections have now been held, it is requested that you
expedite transmittal of background data and any information in your files regard-
ing major nonincumbent candidates for Senate, House and/or Governor in those
districts covered bj^ your Office. Bear in m-ind that this matter should, of course,
be handled extremely discreetly and that the information should be submitted to
the Bureau on a strictly informal basis as soon as possible.
39
Memo
January 12, 1973.
Re Information for Campaign Trips : Events and Issues.
Under date of September 1, 1972, Geoff Shepard of the White House staff,
prepared a memorandum for the Deputy Attorney General on the subject of
"Information for Campaign Trips: Events and Issues." This requested two
categories of information: (1) identification of the substantive issue problem areas
in the criminal justice field; and (2) a list of events relating to the criminal justice
area that would be good for John Ehrlichman to consider doing. The memo-
randum indicated an interest in this information in 15 specified states. It requested
the information by close of business on September 7, 1972.
Under date of September 8, 1972, the Deputy Attorney General forwarded to
Acting FBI Director L. Patrick Gray, III, a copy of the White House memo-
randum requesting an evaluation of the questions. This noted that the White
House deadline already was passed and asked for a response as quickly as possible.
(A copy of this memorandum and a copy of the White House memorandum are
attached.)
The memorandum from the Deputy Attorney General was received in the
oflfice of the Acting Director of the FBI at 10:32 a.m., on September 8, 1972.
Mr. Gray was out of Washington at the time and the matter was handled by
his Executive Assistant, David D. Kinley. He forwarded it to the Assistant
Director of the Crime Research Division, Thomas E. Bishop. Mr. Bishop dis-
cussed the matter with Acting Associate Director W. Mark Felt, and thereafter
Mr. Bishop had one of his subordinates prepare a teletype to 21 FBI Field Offices
which he approved to be sent late on September 8, 1972, setting a deadline of the
opening of business on September 11, 1972. This teletype set out virtually verbatim
the text of the request in the White House memorandum of September 1, 1972.
The material received from the Field Offices in response to the teletype was
summarized into a memorandum on September 11, 1972, which was approved by
Messrs Bishop, Felt and Kinley and was then delivered to the office of the Deputy
Attorney General late on the same date. The information supphed by the Field
Offices required no investigation to obtain it — it was information readily available
within the Field Offices pertaining to forthcoming meetings and conferences
on matters of similar interest in law enforcement and criminal justice fields.
Mr. Gray was out of Washington during the entire period of September 8 to
11, 1972, returning to the city after 7 p.m., on September 11, 1972. His first
knowledge of this matter was on the late afternoon of September 12, 1972.
Personnel involved in the handling of this project have stated they did not
question the propriety in complying with the request since it dealt with information
of a broad nature concerning police and the criminal justice system, since it had
been requested by the White House, and since the request had come through the
offices of the Deputy Attorney General and the Acting Director.
U.S. Government,
September 8, 1972.
To: L. Patrick Gray, Director, FBI.
From: Ralph E. Erickson, Deputy Attornej' General.
Subject: Information for Campaign Trips: Events and Issues (Attached. White
House Memorandum.)
Would you undertake to evaluate the questions asked of us by Jolm Ehrlichman
in the attached memorandum and give me the benefit of your response.
Although we are beyond the due date of this memorandum already, jDlease make
your response as quickly as possible.
The White House,
Washington, September 1, 1972.
Memorandum for: The Deputy Attorney General.
Subject: Information for campaign trips: Events and issues.
In order for John Ehrlichman to give the President maximum support during
campaign trips over the next several weeks, the following information is required
for each of the states listed at Tab A.
(1) Identification of the substantive issue problem areas in the criminal justice
field for that particular state. Please limit yourself to problems of sufficient
magnitude that the President or John Ehrlichman might be expected to be aware
of them. Brevitj^ is the key, and often all that is necessary is to flag a sensitive
problem so it can be avoided or more extensive preparation can be undertaken
should we choose to speak about it.
40
(2) A list of events relating to the criminal justice area that would be good for
John Ehrlichman to consider doing. For each suggested event, the following items
should be indicated:
(A) Purpose of the event.
(B) The nature of the group or institution involved.
(C) The content of the event.
(D) Names of specific people who can be contacted for the purpose of setting it
up (together with titles, addresses, telephone numbers, etc.).
(E) All trade-off factors to be considered in scheduling the event.
I am receiving separate materials from both LEAA and DALE, so you should
omit any consideration of problems in the area of Federal aid or drugs. I would
expect your hst of problems to be fairly brief, but there are certainly criminal
justice problems (such as the Fort Worth Five) that we should flag for the
President.
I know this is rushing you, but I need the information by close of business,
Thursday, September 7, 1972.
Thanks, Ralph.
Geoff Shepard.
California (San Francisco and Los Angeles) .
Connecticut.
Florida.
Georgia (Atlanta).
Illinois (Chicago).
Massachusetts.
Michigan.
Missouri (Kansas City).
New Jersey.
New York City.
Ohio.
Pennsylvania (Philadelphia and Pittsburgh).
South Dakota.
Tennessee.
Texas (San Antonio).
Mr. Gray. I first learned of the program to collect biographical
information on congressional candidates on October 26, 1972, when
we learned at FBI Headquarters that an agent in Elyria, Ohio,
contrary to specific instructions, had contacted a newspaper in that
area requesting information on a candidate. I promptly obtained the
complete facts concerning this program and immediately ordered
that it be discontinued. A press release concerning this matter was
made the following day, October 27, 1972, and this is included with
the material enclosed \\ith my letter to you. Senator Ervin, of January
12, 1973, which has been submitted for the record.
Concerning the request sent to 21 FBI field offices in September
1972, seeking information of possible interest to the White House in
the law enforcement and criminal justice field, also discussed in my
letter to you of January 12, 1973, Senator, I first learned of that in
a staff meeting. I believe it was 5 o'clock on Tuesday, I would have to
remember the date that I set it forth, I have the letter to you, Senator,
and I can get it from there rather than picking a wTong date.
The important point I think
Senator Ervin. I believe 3^ou wrote the letter on January 12, 1973.
Mr. Gray. Yes, but when I learned of it was the Tuesday following
my return from a week long trip. I had gone the preceding week to
Butte and Anchorage, was out on travel all that week. I want to be
very sure about these answers, that is why I want to take the time. I
have got the information here and just need to refresh my recollection.
41
I went on a trip to Anchorage, Alaska, to visit the field office there,
to visit the Seattle field office, the Portland field office, speak in
Spokane, Wash., to the Washington State Bar Association, visit the
field office at Butte, Mont., and the dates of all those were around the
11th, I think, of September, and I will pin it down here. Yes, and I
came back, it was on the 12th of September in a meeting with my
personal staff in the afternoon that I learned about this. This was the
first indication that I had of it.
Senator Ervin. I think it might be helpful to the committee if you
could indicate in an extremely brief fashion the nature of the informa-
tion in the dossiers, or whatever you chose to call them, relating to
Congressmen and candidates for Congress which had been collected by
the FBI vmder this practice.
Mr. Gray. Right. The idea was started, conceived in 1950, was
pursued actively from 1954 on, and the idea was generated by those
who were then in charge of meeting with Members of Congress and
handling requests from Members of Congress and providing informa-
tion to Alembers of Congress.
The concept of the operation was to go into a district, acquire the
names of the individuals who were candidates, and acquire public
source information regarding those individuals as well as any informa-
tion in the files of the FBI at the division level, regarding any contacts
that these individuals might have had with the FBI — to bundle all
this public source material together, send it back to FBI headquarters
where it was distilled and a summary memorandum prepared if th^
individual was elected. No summary memorandum was prepared if the
individual was not elected, and all public source material acquired was
destroyed. So that all 3'ou had, if you had an incumbent, or rather a
candidate running in a given district, we would gather that material
on him. Then if this candidate was elected, public source material on
him would be distilled into a summary memorandum and that would
be sheet No. 1 or sheets No. 1 through however long the memorandum
was regarding this individual. Our people who were in what was then
called the Crime Records Division would utilize that in making
their contacts with, the Members.
Senator Ervin. What was done with the data that was related to
the candidates who lost?
Mr. Gray. They were destroyed, Senator.
Senator Ervin. Destroyed.
Did the summary which was made from these files indicate whether
there had been investigations into the personal conduct or the political
views of the candidates or Members?
Mr. Gray. No. The only information we had was the public source
information that we acquired or any information that we might have
on the indi\4dual that was contained in the FBI files at the division
level or at the headquarters level. Now, if that individual as a private
citizen had been the subject of a FBI investigation; yes, sir, that would
be contained in the summary memorandum.
Senator Ervin. But, if he had not been the subject of a prior
investigation it would not be?
Mr. Gray. No, sir, and we did not conduct any investigation of
these individuals who were candidates in a given district.
Senator Ervin. Now, of course, this practice had originated long
before you became Director?
42
Mr. Gray. Yes, sir, that is correct, Senator.
Senator Ervin. And your investigation of the history of the practice
satisfied you that this information was gathered for the benefit of
those FBI employees who may have a reason to contact these Con-
gressmen for the FBI in the dealings between Congress and the FBI.
Mr. Gray. Yes, sir. Right here at the national level men like
Inspector Dave Bowers, who conduct this kind of relationship with
the Congress, who really — really it is a congressional services unit
and that is what I have changed it to in the reorganization. Those men
are doing that now and are in what we call today the congressional
services unit.
Senator Ervin. As I understand from your letter and other public
statements made by you, tliis practice has been discontinued and the
FBI relies upon such tilings as the "Congressional Quarterly" and
other public information for any information of this character?
Mr. Gray. Right. I shut it down over the recommendations of the
people in the Bureau that it be continued and I said absolutely not, it
will not be continued. It is too readily subject to misinterpretation
and we don't need it.
Senator Ervin. As you know, the Senate has imposed upon me
and other members of the Senate Select Committee on Presidential
Campaign Activities a very solemn and serious responsibility in con-
nection with the so-called Watergate affair and various ramifications
connected with it. I would have been happy if I could have asked
you some of these questions 1 am now going to ask you after that
committee has discharged those responsibilities. However, in view of
the fact that your nomination has been submitted now, I am compelled
in the nature of things to ask you these questions.
Mr. Gray. Senator Ervin, I understand that. I would hope, of
course, we would not get into the Watergate substantively, but I can
readily see that the members of this committee have got to be assured
that I went at this with the FBI's standard procedure, with its accus-
tomed vigor, and I will do my very best to respond to any of your
questions. I have absolutely nothing to hold back in connection
with that and if we are going to take two bites of that apple why so
be it, let's get on with it.
Senator Ervin. I have received by telephone the assurance of
the Attorney General that he and the Department of Justice will
cooperate with the committee in the effort of the committee to investi-
gate these matters. I take it from your statement a moment ago that
you are also prepared to cooperate with the committee.
Mr. Gray. Absolutely, sir. Our raw data, our memoranda, what-
ever jthis committee wants, whatever the Ervin Select Committee
wants, is available to the members.
Senator Ervin. I am frank to state that I am just a little bit
troubled by the limitation that you announced, that only members of
the committee, that is only Senators, shall be allowed to inspect these
raw fdes, because I have got 10.000 other jobs besides that of investi-
gating Watergate and I think that is true of all the other members of
the committee.
Mr. Gray. I understand that, Senator.
Senator Ervin. The Senate resolution authorizing and requiring
this investigation specifies that the only people who can have access
43
to these files would be either the members of the committee or the
chief counsel to the committee or the counsel for the minority or other
members of the staff of the committee who might be designated by
the chairman and the ranking minority member of the committee.
Mr. Gray. You are talkmg about your Er\dn Select Committee?
Senator Ervin. Yes,
Mr. Gray. I have no quarrel with that. We will comply with the
resolution of the Senate. But I am talldng about the procedure now,
because Senators here who are members of this committee ob^dously
are going to want to know how Gray handled the Watergate before
the}'^ are going to confirm this bloke for my position and I am prepared
to tell you.
Senator Ervin. In other words, I would think that the minority
ranking member, who is now elected vice chairman of the committee,
Senator Baker of Tennessee, would not want anybody but the m.ost
reputable person to look at the files but we would like to have a
member of the staff selected by both of us to do this work instead of
doing it in person. ; ,
Mr. Gray. Senator, as far as your committee is concerned, we in
the FBI will abide by the joint resolution, I have some people I have
to take some orders from, too. On the one hand, there were some who
criticized Mr. Hoover for being a feudal baron and now ma3^be it
seems I sense a little criticism of me because I am taking orders, but
I am trying to comply. I am saying to tliis committee that my posi-
tion has been from the beginning that we have nothing to hide and
I am going to state it on the public record because. I have stated it
on the private record. ■
Senator Ervin. Yes, that is the reason that I am concerned that
Senators not be the only ones who will have to do this work and so
I understand . •
Mr. Gray. I meant, Senator Ervin, for tliis committee I am willing
to send over the materials and I am willing to send, oyjer two agents
and a Senator can sit down with them and question them any way
they want.
V Senator Ervin. And I might state that as far as I am concerned
and as far as I can control the matter, it is not the purpose of the
committee to take and put any raw files or an^^tliing of that character
in evidence. We just don't want to have to put the taxpayers to the
expense of setting up a little FBI of our own to conduct investigations
which have been made by the FBI. We want to learn from the FBI
files A\'lio are witnesses , possessing some knowledge which is worthwhile
for the committee to hear.
Mr. Gray. Right, and we have analyses and all other kinds of
books and summaries and we will provide that to the Ervin Com-
mittee. We have no problem on that.
Senator Ervin. Mr. J. Edgar Hoover never had a more ardent
admirer in the United States than myself, and there is nobody in
the United States who has respected throughout the years the woi'k
of the FBI more than I have respected it. As a practicing attorney
and as a judge I had nitiny contacts with the FBI agents. I have been
impressed by the highest standard of conduct and tlie high character
Y%hich they possess.
Mr. Gray. Thank you. Senator Ervin.
44
Senator Ervin. I read somewhere in the press that the FBI had
interviewed hundreds of witnesses in connection Mith this Watergate
affair but that former Secretary Stans, instead of being interrogated
by the FBI, had been permitted to file with the FBI a statement
prepared by him or for him. Can you inform me as to that?
Mr. Gray. That is not correct. That may be confused with the
fact that a deposition was taken from him instead of his appearing
before the Federal grand jury. I believe I am correct on that, but
subject to checking my files and gi\ang you an accurate answer on
that, let that be what I think you are talking about. But we inter-
viewed Secretary Stans, and my recollection is that we interviewed
him four times, no, three times: on July 5, July 14, and July 28, 1972.
(Mr. Gray subsequently submitted the following statement :)
Upon checking the record I find that a deposition was taken from Secretar.y
Stans on August 2, 1972, by two assistant U.S. attorneys at the Department of
Justice in lieu of Federal grand jury testimony. In further checking, I find that
we interviewed Secretary Stans four times; one time on July 5, twice on Jul}' 14,
and one time on July 28, 1972.
Senator Ervin. Now the reason I asked that question is that I
know, as a lawyer, that you cannot crossexamine a statement. That
is the reason that the rumor or statement I read gave me some
concern.
There is one other thing I would like to ask. Did you ever know Mr,
Donald H. Segretti, a California lawyer? ' *""
Mr. Gray. Did I know him personally, sir?
Senator Ervin. Yes,
Mr. Gray. No, sir.
Senator Ervin. The Washington Post, on October 15, 1972, reported
that Lawrence Young, a California attorney, who I believe was a
college mate of Mr. Segretti, stated in a sworn statement that Mr.
Segretti told him, among other things, that on August 19 — well, I
will say before reading it that Mr. Young stated in an affidavit sup-
plied to the Washington Post that he and Mr. Segretti and Dwight
L. Chapin were college mates — I believe it was at Southern California,
I am not sure of the institution — and that Mr. Segretti told him that
he had been interviewed by the FBI on one or more occasions, that
he had been subpenaed as a witness to testify in the Watergate case,
and that on August 19, 1972, two days before the Republican National
Convention, that he, Mr. Segretti, went to Miami Beach, and that
while he was there a presidential aide showed him copies of two inter-
views he had with the FBI, including one that was not yet 24 hours
old.
Mr. Gray. I think we only interviewed Segretti once but I have to
check that. Let me just check this record here. I know we interviewed
him on the 26th of June and am just trying to see whether there was
another date on which we interviewed him.
My recollection, first, is that we only interviewed him on the 26th
of June. I don't know whether we interviewed him a second time. We
didn't look into that allegation at all as to whether or not he was
shown any FBI interview statements.
Senator Ervin. Then you can't give me any information on that
question;
Mr. Gray. I can give you information on it but I can't tell you
whether or not he was shown those statements — that is what I cannot
45,
tell you. To give you that information I am going to have to take time
to tell you how we progressed on this investigation.
Senator Ervin. Well, that wouldn't be a likely procedure to be per-
mitted bv the FBI, would it?
Mr. Gray. Of course not. We certainly would not.
Senator Ervin. So you, at the present time, can neither affirm nor
deny that statement;
Mr. Gray. No, I don't because I can't; I can't say with any degree
of certainty testifying under oath that he was or was not.
Senator Ervin. I take it that you give the committee your assurance
that if any such event happened, that is if any copy of the FBI inter-
view was given to Mr. Segretti it was not given by you or with your
knowledge or consent;
Mr. Gray. It was not done with my knowledge or consent, that is
true. But I can go into it further if you want me to explain how it
possibly could.
Senator Ervin. Yes, I would like to have that.
Mr. Gray. When we started out this investigation, it was the most
closelv held investigation that we have conducted in the FBI because
of the fact that we did not know who might become involved. Dis-
semination of information on this was very limited, at my explicit
order, and with the concurrence of the Attorney General of the United
States.
Now there was that contact between the case agents and the
Assistant U.S. Attorneys that traditionally occurs in an investigation.
There was contact also with the assistant attorney general of the crimi-
nal division, and in accordance with then standard FBI operating
procedures, on June 19 there was delivered to me a summary report of
what had transpired to date, facts and circumstances, in Watergate.
Coupled with that was a letterhead memorandum, as I recall it, and
I will introduce those documents for the record here, a letterhead
memorandum transmitting this information to the Attorney General,
and a letter prepared addressed to H.R. Haldeman. I said no, and I
stopped it right then and there. That was in accordance with then
standard FBI operating procedure. The material just came up, and I
said no.
Now, as time went on we finalh^ began delivering the investigative
reports to the assistant attorney general of the criminal division and
we have a listing of the da:tes on which we did that and I will
submit that for the record. Then, I think it was the middle of July,
about the 19th, I was asked by the White House, by John Dean, to
provide them with a letterhead memorandum because he wanted to
have what we had to date because the President specifically charged
him with looking into any involvement on the part of White House
staff members.
I asked m}^ legal counsel to prepare a memorandum regarding
whether or not we had a duty to send any material to the White
House. The answer came back: On our own initiative, no; in response
to a directive from an individual acting for the President of the
United States, that is another matter and we do.
So I had prepared, caused to be prepared, a letterhead memoran-
dum, dated Jul}^ 21, and we will submit that for the record, and that
was submitted to the Attorney General. I have every reason to believe
91-331 — 73 1
4.6
that that went over to Mr. Dean at the White House. I have no
reason to question that it should or should not, because I work for
the President of the United States and I think the President of the
United States is entitled to ask the Director of the Federal Bureau
of Investigation: "What information do you have that implicates
individuals who are members of my staff?" And I submitted it.
Later on, Mr. Dean asked to review the interview reports of the
Federal Bureau of Investigation, and I submitted those to him. So you
see the possibility here, Senator, and I think what is being driven at
in this, the allegation is really directed toward Mr. Dean having one of
these interview reports and showing it to Mr. Segretti down in Miami.
I can tell you this, that when this newspaper report hit I called John
Dean and I asked him if he had done this, and he said: "I did not.
I didn't even have those documents ^vith me."
Senator Ervin. Now, am I correct in inferring that it had been
the practice to supply information collected by the FBI, either in the
form of summaries or in the form of copies of interviews, to officials
of the Department of Justice or the district attorne3rs;
Mr. Gray. Our regular procedure, Senator Ervin, of course, is to
work very closely with the assistant U.S. attorneys and with U.S.
attorneys, and then at FBI headquarters levels to work ^vith the
Assistant Attorney General having cognizance of the case, and the
answer to your question is "Yes; we keep them informed." In this case
we were even tight with information there.
Senator Ervin. Let me see if 1 understand another thing you said.
Some information or a summary of some information collected by
the FBI in regard to some aspect of the Watergate matter, accom-
panied by a proposed letter, was to be sent to Mr. Haldeman? -~;''
J\lr. Gray. Yes, sir; that happened on June 19, and I will subiiiit
those documents for the record. I will show them exactly as they
.came up to me, and I said "No."
(Mr. Gray subsequently submitted the following documents:)
''"■■'. . . June 19, 1972.
To: The Attorney General from Acting Director, FBI.
Re James Walter McCord, Jr., and otliers, burglary of Democratic Party National
Headquarters, Washington, D.C. "'
Enclosed is a memorandum containing the results of investigation of the
burglary of the Democratic Party National Headquarters, Watergate Apart-
ments, Washington, D.C, on June'l7, 1972.
A copy of the memorandum has also been furnished to Honorable H. R. Halde-
man, Assistant to the President. Investigation concerning this matter is continu-
ing and reports of investigation will be furnished to the Criminal Division as
soon as thev are received.
U.S. Department of Justice,
Federal Bureau of Investigation,
Washington, D.C, June 19, 1972.
Hon. H. R. Haldeman,
Assistant to the President,
The White House,
Washington, D.C.
De;ar Mr. Haldeman: Enclosed is a memorandum containing the results of
investigation of the burglary of the Democratic Part}' National Headquarters,
Watergate Apartments, Washington, D.C, on June 17, 1972.
A copy of the memorandum has also been forwarded to the Attorney General
and investigation by the FBI is continuing.
Smcerely yours,
L. Patrick Gray, III,
Acting Director.
47-.
James Walter McCosd, Jr., and Others, Burglary of, Democratic Party
National Headquarters, Washington, D.C, June 17, 1972
interception of communications
At approximately 2:30 a.m., June 17, 1972, officers of the Washington, D.C,
Metropolitan Police Department (AIPD), acting on information received from the
security guard, Watergate Apartments, 2600 Virginia Avenue, N.W., Washington, .
D.C, that locks in the building had been tampered with, arrested five individuals
in the office of the Democratic Party National Headquarters. These individuals
have been identified as: James Walter McCord, Jr.; Bernard L. Barker; Frank.
Anthony Fiorini; Virgirlo R. Gonzales; and Eugenio Rolando Martinez y Ceaga.
These individuals had in their possession burglary tools and a quantity of eaves-
dropping and photographic equipment.
At the time of the arrests, it was observed that several ceiling panels had been
removed, as well as a telephone jack and an air conditioning cover, apparently
in preparation for concealment of the eavesdropping devices.
All subjects have been charged with burglary, in violation of Section 1801,
Title 22, District of Columbia Code, and all except McCord are being held in
lieu of $50,000 bond. McCord is being held in lieu of $30,000 bond. A preliminary
hearing is set for June 29, 1972. Ail subjects have declined to be interviewed
concerning this matter.
At the time of their arrests, the subjects were in possession of $2,400, including
thirteen new $100 bills. A search of rooms rented at the Watergate Hotel by
these individuals, pursuant to a search warrant authorized by Assistant U.S.
Attorney Charles Work, Washington, D.C, disclosed an additional $3,500 in
new $100 bills of the same series and originating serial numbers as those found at
the time of the arrests.
Investigation reveals the following information concerning the background
of the persons arrested:
James Walter McCord, Jr., of Rockville, Maryland, who at the time of his
arrest gave the name Edward Alartin, has been determined to have been emplo.yed
as an FBI Agent from October, 1948 to February, 1951; having been emploj^ed by
Central Intelligence Agency (CIA) August, 1951 to August, 1970; and is presently
reported to be Chief of Security for the "Committee to Reelect Nixon," 1701
Pennsylvania Avenue, N. W., Washington, D.C. In addition, McCord, in February,
1<)72, was reportedly in charge of security for the family of former Attorney
General John N. Mitchell.
Bernard L. Barker, who is also known as Frank Carter, is reported to be a
Cuban national who is in the real estate business in Coral Gables, Florida. He is
indicated to have been of interest to the CIA in the past but is not of curreilt
interest. He is reported to be very active in anti-Castro groups in Florida.
Frank Anthony Fiorini, also known as Fred Frank Fiorini, Attila F. Sturgis,'
Anthony Sturgis and Edward Joseph Hamilton, was arrested on July 30, 1958,
for illegal possession of arms in Florida. Prosecution was declined concerning
that matter. Sources in the Miami area report he is a "soldier of fortune" and
allegedly was a gun runner to Cuba prior to the Castro regime. Sources in Miami
say he is now associated with organized crime activities, the details of which are
not available.
Virgirio R. Gonzales, also known as Raoul Godo.v, is a native of Guba, currentlj'-
residing in Miami, Florida. CIA records do not indicate Gonzales is known to
that agency; however, further check is being made in this regard.
Eugenio Pi,olando Martinez y Creaga, also known as Eugenio Rolando Martinez,
GeneValdes and Jean Yaldes, is a native of Cuba. He was arrested November 24,
1958, for violation of immigration laws in Miami, Florida, and was deported to
Havana, Cuba, on January 2, 1959. He reportedly arrived in the United States
by boat on June 18, 1938, from Cuba. Sources in Miami report Martinez is a
friend of Barker and is possibly in the real estate business with Barker. CIA
records do not indicate that Martinez is known to that agency; however, further
check is being made in this regard.
It is to be noted at the time of the search of the subjects' hotel rooms, a stamped
sealed envelope was located. This envelope contained a check drawn by E. Howard
Hunt in the amount of $6.39 and a bill from Lakewood Country Club, Rockville,
Maryland, to Hunt in care of Weybright & Talley, New York City. Runt has
been determined to be Everette Howard Hunt, Jr., who was employed by CIA
from November, 1949 to April, 1970, and on whom the FBI conducted a Special
Inquiry investigation in July, 1971, for a White House staff position. Mr. A. P.
48
Butterfield, Deputy Assistant to the President, advised that Hunt was used as-
a consultant by the White House on "highly sensitive, confidential matters"
about nine months ago. To Mr. Butterfield's knowledge, he has not been used
since. Hunt was interviewed, admitted the checic in question is his, but refused
to discuss this matter or the individuals involved without consulting his attorney.
It is noted that shortly after the subjects were arrested, a Washington, D.C.,
attorney, named Michael Douglas Caddy, appeared at the 2nd District, MPD,
stating he was representing the five subjects. It is known that when the subjects
were arrested, they refused the opportunity to make a telephone call and had
no way of contacting Mr. Caddy. He wa-s asked how he became aware of the
arrests but refused to furnish anj^ information stating he would recontact Assistant
U.S. Attorney Work in a few days after thinking the matter over. Subsequently,
he advised FBI Agents he received a call at 3:00 a.m., June 17, 1972, from a
person whose identity he would not reveal. It is noted that Caddy, during FBI
investigation of Hunt, was listed by Hunt as a personal reference and at that
time Caddy advised he had known Hunt for about two years.
Investigation of this matter is continuing by the FBI to determine whether
there is a violation of the Interception of Ccmimunications Statutes or any other
Federal statutes.
This document contains neither recommendations nor conclusions of the FBI.
It is the property of the FBI and is loaned to your agency; it and its contents are
not to be distributed outside your agency.
Investigative reports delivered to Assistant Attorney General Henry Petersen,
Criminal Division of the Department:
Number of
Date reports
June 30, 1972 13
Julv 3, 1972 13
Julv 7, 1972 10'
July 14, 1972J_ , 22
Julv 19, 1972 23
July 20, 1972 I
Aug. 1, 1972 24
Aug. 11, 1972 11
Aug. 25, 1972 9
Sept. 28, 1972 12
Oct. 13, 1972 6
Oct. 20, 1972 8
Dec. 6, 1972 18
Dec. 22, 1972 2
Jan. 11, 1973 7
Jan. 15, 1973 2
Jan. 26, 1973 1
Feb. 1, 1973 1
Feb. 9, 1973 1
Feb. 13, 1973___ I
Feb. 16, 1973 1
Total 18ft
U.S. Department of Justice,
Federal Bureau of Investigation,
Washington, D.C., July 21, 1972.
James Walter McCord, Jr.,
Burglary of the Democratic Party National Headquarters, Washington, D.C.
There follows a summary of pertinent investigation conducted of the captioned
matter through July 20, 1972:
Burglary and Arrest: At approximately 2:30 a.m., June 17, 1972, officers of the
Metropolitan PoUce Department (MPD) apprehended five individuals in an
executive conference room of the Democratic Party National Headquarters lo-
cated on the 6th floor of the Watergate Apartments, 2600 Virginia Avenue, N.W.,
Washington, D.C. At the time of arrest the subjects had in their possession
burglary tools, electronic and photographic equipment and were wearing surgical-
type plastic gloves.
49
Those arrested were identified as James Walter McCord, Jr., using the alias
Edward Warren; Bernard L. Barker, using the alias Frank Carter; Eugenio
Rolando Martinez y Creaga, using the alias Gene Valdes; Frank Anthony Sturgia,
also known as Frank Anthony Fiorini, using the aliases Joseph Di Alberto and
Edward Hamilton; and Virgirlo Gonzales, using the alias Raoul Godoy.
All subjects refused to be interviewed, refused to state for whom they were
working, from where they came or their purpose for being in the building. They
were all charged with Burglary, Section 1801, Title 22, District of Columbia
Code, and were held on $50,000 bond except for McCord, a Rockville, Maryland,
resident, whose bond was set at $30,000. AH but Sturgis have since been released
from District of Columbia Jail on bond.
McCord, who appears to have been the leader of this group, retired from the
Central Intelligence Agency (CIA) on August 31, 1970, and at the time of his
arrest he was Chief of Security for the Committee to Reelect the President. The
remaining subjects are all known to have Cuban backgrounds and either worked
with or participated in CIA activities against the Castro Government.
Involvement of Everette Howard Hunt, Jr.: After the arrests of the subjects in
the Democratic Party National Headquarters, pursuant to an authorized search
warrant, a search was made of the rooms rented by the subjects, using aliases, at
the Watergate Hotel. Among the items located was an envelope containing a
check of E. Howard Hunt in the amount of $6.39 in payment for a bill from Lake-
wood Country Club, Rockville, Maryland, to Hunt in care of a publications firm
in New York City. Hunt, when contacted, admitted the check was his but refused
to discuss the matter before consulting his attorney. Also located in the subjects'
rooms were personal telephone directories which contained names, telephone
numbers and addresses of numerous persons in Miami, New York and Washington,
D.C. One of the names contained in the telephone book of subject Martinez is
"Hunt (W. House)," together with the telephone number of Hunt's office at the
White House.
Investigation developed that Hunt was employed by the CIA from November 8,
1949, to April 30, 1970, when he retired. On May 1, 1970, he became employed
by Robert R. Mullen Company, 1700 Pennsylvania Avenue, N.W., Washington,
D.C, a public relations and fund raising organization. Beginning July 6, 1971,
Hunt was employed on a consultant basis by the White House staff, working
with Mr. David R. Young and Mr. Charles W. Colson. He is reported to have
been used as a consultant on declassification of the Pentagon Papers. His services
were last utilized in this capacity on March 29, 1972. Information was developed
that on the recommendation of a member of Mr. Colson's staff, Hunt was ter-
minated as a consultant effective April 1, 1972, and was to be hired immediately
thereafter by "1701" (1701 Pennsylvania Avenue, N.W., is the address of the
Committee to Reelect the President).
Investigation developed that between January 1, 1972, and June 20, 1972,
Hunt was in frequent and regular contact with the office and residence of Bernard
L. Barker, Miami, Florida. Investigation further developed that Hunt, frequently
utiHzing the alias Ed J. Hamilton, together with George Gordon Liddy, who
frequently used the alias George Leonard or G. Leonard, traveled extensively
around the United States contacting former CIA employees for the purpose of
setting up a security organization for the Republican Party dealing with "political
espionage."
Involvemeyit of Michael Douglas Caddy: Michael Douglas Caddy, also known as
Douglas Caddy, is an Attorney at Law having offices at 1250 Connecticut Avenue,
N.W., Washington, D.C, and is associated with the law firm Gall, Lane, Powell,
and Kilcullen. Caddy gratuitously appeared at the Metropolitan Police Depart-
ment where subjects were taken after being arrested and claimed to represent them.
Prior to Caddy's arrival, none of the subjects made any phone calls which might
have precipitated his appearance. Investigation disclosed telephone calls were
made during the early morning hours of June 17, 1972, from the telephone of
Everette Howard Hunt at the Robert R. Mullen and Company to the Barker
residence in Miami, Florida, and from Barker's residence to the residence of Caddy.
Upon Caddy's appearance before the Federal grand jury at Washington, D.C,
he was held in contempt of court for failing to answer questions on the basis he had
an attorney-client relationship with Hunt. Contempt action was upheld by the
U.S. Court of Appeals on July 19, 1972. Caddy subsequently testified he received a
telephone call from Hunt at around 3:00 a.m., on June 17, 1972.
Involvement of George Gordon Liddy: As is set forth elsewhere in this memoran-
dum, Everette Howard Hunt traveled extensively endeavoring to recruit former
CIA employees for security work for the Republican Party in late 1971 and early
50
1972. Investigation has developed that Liddy accompanied Hunt on a number of
these trips. Liddy, a former FBI Agent, was employed from April, 1969, to July,
1971, by the U.S. Treasury Department in the office of Law Enforcement. When
he resigned from the Treasury Department, Liddy accepted a position on the
White House staff and in December, 1971, resigned therefrom to work for the Com-
mittee for the Reelection of the President.
The telephone notebook of Martinez which was recovered when the rooms of
the subjects were searched at the Watergate Hotel contained a notation " George"
with the telephone number of 202-333-6575. The telephone notebook of
Bernard L. Barker, located in the above mentioned search, contained a notation
"George" with the telephone number WDC 333-0362. Investigation developed
that both of these numbers were at the office of the Committee for the Reelection
of the President, 1701 Pennsylvania Avenue, N.W., Washington, D.C.
It is noted that Mr. Maurice Stans, Chairman of the Finance Committee for
the Committee to Reelect the President, advised that the $25,000 cashier's check
, payable to Kenneth H. Dahlberg, dated April 10, 1972, was turned over to
Liddy, counsel for the Finance Committee, for a legal opinion as to how it would
be best to handle the receipt and recording of this check as the funds allegedly
had been contributed prior to April 7, 1972, although the check was dated April
10, 1972, after the effective date of new disclosure and reporting law. The check
was cashed by subject Bernard L. Barker at his bank in Miami, Florida, but Mr.
Stans had no idea how Barker obtained the check. (See write-up elsewhere in
this memorandum concerning the tracing of funds and the write-up concerning the
Howard Johnson Motel wherein it is shown that Liddy was observed giving a
large sum of money in cash to subject McCord.) Liddy is reported to have been
discharged by the Committee to Reelect the President because Liddy declined to
be interviewed by FBI Agents concerning this case.
Howard Johnson Motel Lookout: Investigation developed that James Walter
McCord, Jr., rented Room 419 at the Howard Johnson Motel, 2601 Virginia
Avenue, N.W., Washington, D.C, from May 5, 1972, to May 28, 1972, and
Room 723 from May 29, 1972, until June 17, 1972. Room 723 was found vacant
by m-otel employees the evening of June 17, 1972. This motel is located directly
across the street from the Watergate Apartments and Room 723 faces the suite
occupied by the Democratic Party National Headquarters at the Watergate
Apartments.
Alfred Carleton Baldwin, III, a former FBI Agent, has been identified as the
individual who occupied Rooms 419 and 723 from about May 11, 1972, to June 17,
; 1972. Baldwin advised that during a period of this time he monitored, through the
use of electronic equipment set up by McCord, telephone conversations of Spencer
Oliver, a Democratic Party official. McCord told Baldwin that four extensions of
Oliver's telephone located "at the Democratic Party National Headquarters, were
being monitored.
Baldwin stated that while he was occupying Room 723 on one occasion, the
specific date which he cannot determine, George Gordon Liddy and Everette
Howard Hunt came to the room and had a conversation with McCord. On this
occasion Liddy took an envelope from his suit jacket and counted out about
$16,000 to $18,000 in $100 bUls, which he gave to McCord. McCord pocketed the
money and all three individuals left the room.
On the evening of June 16, 1972, McCord came to Room 723 and requested
Baldwin to purchase six batteries and some "speaker wire." Baldwin obtained the
batteries but did not buy the wire and McCord subsequently departed to locate
some wire. He returned about 11:00 p.m. to 11:30 p.m., carrying the wire and
various other electronic components appearing to have come from Lafayette
Radio.
About 12:00 a.m. to 12:30 a.m., June 17, 1972, McCord received a telephone call
and told Baldwin that "we're going across the street," pointing to the Democratic
Headquarters. McCord told Baldwin to watch and if anything unusual occurred
to contact McCord by walkie-talkie.
About 2:15 a.m., June 17, 1972, Baldwin noticed lights going on in the Water-
gate Apartments and subsequently police beginning to arrive. He attempted to
utilize the walkie-talkie to alert McCord and received a response in a whisper,
"We hear j^ou, they got us." About this time Baldwin noticed two men leaving the
alley on the east side of the Watergate and identified them as Hunt and Liddy.
Hunt came to Room 723 and used the phone to contact an attorney. Hunt told
Baldwin to telephone Mrs. McCord and advise her that her husband had been
arrested. He also told Baldwin to pack up the electronic gear and deliver it to
Mrs. McCord in McCord's panel truck which was parked in the basement of the
51
Howard Johnson Motel. He further told Baldwin to pack up his own belongings
and go home. Baldwin delivered the electronic equipment together with McCord's
wallet which had been left in the room to Mrs. McCord at about 4:00 a.m., June 17,
1972. She drove him back to his own car and he thereupon drove to his home
in Connecticut.
Travel Miami— Washington, D.C.: Travel June 16, 1972.
Investigation at Tamiami Tours, Miami, Florida, identified subjects Bernard L.
Barker and Eugenio R. Martinez as individuals who on June 12, 1972, purchased
four round trip tickets from Miami to Washington, D.C., on Eastern Airlines
flight 190 for June 16, 1972. These tickets, which were found on the subjects at
the time of their arrest, were purchased in the names of G. Valdes (alias of subject
Eugenio Martinez), F. Carter (ahas of subject Bernard L. Barker), J. Di Alberto
(alias of subject Frank Fiorini). and R. Godoy (alias of subject Virgirlo Gonzales).
At time of their arrest June 17, 1972, the subjects, except for McCord were
determined to be registered at the Watergate Hotel, Washington, D.C., under the
aliases shown on the foregoing airline tickets.
Travel May 22-30, 1972. Subject Eugenio Martinez has been identified as the
individual who on May 17, 1972, bought six one-way tickets at Tamiami Tours
for travel from Miami to Washington, D.C., on National Airlines flight 100 de-
parting May 22, 1972. These tickets were purchased by Martinez in the names of
Frank Carter (alias of Barker), J. Granada (believed to be Reinaldo Pico, pres-
ently in South America on business), Joseph Di Albert! (alias of Fiorini), Raoul
Godoy (alias of Gonzales), Jose Piedra (alias of Felipe De Diego) and G. Valdes
(alias of Martinez).
Investigation has determined that the foregoing individuals under the aliases
shown were registered at the Hamilton Hotel, Washington, D.C., from May 22,.
1972, to May 26, 1972, at which time they moved to the Watergate Hotel, Wash-
ington, D.C., where they stayed until May 30, 1972.
Investigation further discloses these individuals were joined at the Watergate
Hotel by two additional persons using the names of George Leonard (beUeved to
be George Gordon Liddy) from Kansas City, Kansas, and Edward Warren
(believed to be Everctte Howard Hunt) from New York City. V/arren paid the
Watergate Hotel bill for these individuals, totaling a little over $1,000 in cash.
Felipe De Diego, an employee of Barker's real estate firm, has been interviewed
and admits being -Rath the subjects during the period May 22-30, 1972, in Wash-
ington, D.C, According to De Diego, he was requested by Barker to make this
trip but he does not know the purpose of the trip and during his stay in Washing-
ton, D.C, the group appeared to be waiting to hear from some unidentified
individual.
It is noted that on May 28, 1972, there was a reported break-in of the Demo-
cratic Party National Headquarters, Watergate Apartments, Washington, D.C.
In addition to the foregoing the Security Guard at the Watergate Apartments
reported that sometime over the Memorial Day week end (he cannot pin this
down any closer) papers were found stuffed in the doorway of the 6th floor stair-
well in an apparent attempt to keep the door from working. Democratic Party
National Headquarters is located on the 6th floor of the Watergate Apartments.
Tracing of Funds; There follows a summary of investigation to trace funds that
may have been used to finance the operation involving the burgarj- of the
Democratic National Headquarters on June 17, 1972.
Bank Account of Bernard L. Barker; Barker as Barker Associates, a real estate
firm, maintains an account at the Republic National Bank of Miami. A review
of the records of this account shows that on April 21, 1972, Barker presented a
cashier's check dated April 10, 1972, payable to Kenneth Dahlberg, drawn on the
First Bank and Trust Company of Boca Raton, Florida, and endorsed by Dahl-
berg. Upon checking with the latter bank and determining that the cashier's check
was "as good as gold" Barker was given $25,000 in cash by the Republic National
Bank.
Barker on April 21, 1972, also presented to the Republic National Bank four
checks dated April 4, 1972, totaling $89,000, drawn on the Banco Internacional,
Mexico City, payable to Manuel Ogarrio and endorsed by Ogarrio. Since these
checks were payable to a third party, Barker was told he would have to deposit
these checks and wait for them to clear before he could receive any money for them.
On May 8, 1972, Barker was given $89,000 in cash by the Republic National Bank
for the foregoing checks.
Bernard L. Barker at the time of his release on $40,000 bond on July 14, 1972,
said he received the four checks totaling $89,000 from two men and turned the
money over to them. He took the 5th Amendment when asked to identify these
individuals.
52
Kenneth DahJberg — $25,000 Cashier's Check: Kenneth Dahlberg is a prominent
industrialist and Regional Chairman of the Finance Committee to Reelect the
President, who lives in Minneapolis and winters in Boca Raton, Florida. After
several refusals to be ' interviewed, Dahlberg on- July 6, 1972, consented to be
interviewed regarding the foregoing $2o,00U cashier's check cashed by subject
Barker. Dahlberg stated this check represented cash contributions he had ob-
tained while in Boca Raton and he furnished this check to Maurice H. Stans,
Chairman, Finance Committee to Reelect the President on April 11, 1972, in
Washington, D.C. According to Dahlberg he has no knowledge of what happened
to this check after he surrendered it to Stans. Dahlberg stated he was not ac-
quainted with subject Barker or any of the other subjects involved in this matter.
It is to be noted that during the period June 23, 1972, to June 26, 1972, when we
were endeavoring to interview Dahlberg concerning this check, he made three
telephone calls to Washington, D.C, to the Committee to Reelect the President.
$89,000 Banco Internacional Checks: On July 10, 1972, Manuel Ogarrio, an
attorney, Mexico City, advised that he purchased the four foregoing bank drafts
totaling $89,000, drawn on the Banco Internacional as a favor to an American
client of twenty years standing whom he refused to identify other than as a re-
liable American company with operations in Mexico. According to Ogarrio his
client gave him a check for $100,000 which he negotiated into the foregoing four
bank drafts and cash. He signed the checks making them negotiable and turned
them and the remaining $11,000 cash over to his client. He received no com-
mission for doing this and has no knowledge as to how Barker came into posses-
sion of these checks. According to Ogarrio he believed the purpose of the trans-
action was to convey money to the Repubhcan Party anonymously. On July 11,
1972, Ogarrio in a reinterview stated that he learned on July 10, 1972, that the
foregoing endorsed bank drafts were forwarded to Maurice Stans of the Republi-
can Party.
Bank Accounts of James Walter McCord: McCord maintains a personal checking
account and a business account in the name of McCord Associates at the Maryland
National Bank, College Park, Maryland. The records of these accounts show he
made a $10,000 cash deposit to his personal account on April 12, 1972; a $10,000
cash deposit to his business account on May 31, 1972; and a $10,000 cash deposit
to his business accovmt on June 12, 1972.
In addition, McCord on behalf of the Committee to Reelect the President on
February 22, 1972, opened an account in the name of Dedicated Friends of a
Better America, with McCord as Chairman, at the National Savings and Trust
Company, Washington, D.C. This account was closed April 17, 1972, and during
the period it was opened over $90,000 passed through this account.
Interview with Maurice Stans: Maurice Stans, Chairman, Finance Committee
toReelect the President, was interviewed July 14, 1972, at which time he advised
that a $25,000 cashier's check was given to him by Kenneth Dahlberg in Wash-
ington, D.C, on April 11, 1972. Stans in turn gave this check to Hugh Walter
Sloan, Jr., who at the time was responsible for the supervision of funds received by
the Finance Committee. According to Stans, Sloan then gave this check to George
Gordon Liddy who was acting as legal counsel to the Finance Committee for a
determination as to how this check should be handled since it was dated April 10,
1972, but the funds which it represented had been contributed prior to April 7,
1972, the effective date of the new Federal Disclosure Act. Sloan subsequently
advised Stans the money from the check had been received by the Committee.
Stans could furnish no explanation as to how Barker came to be in possession of
Dahlberg's $2.5,000 cashier's check.
Stans advised that on April 6, 1972, he learned from Sloan that the Committee
to Reelect the President had received $100,000 in the form of bank drafts on
Mexican banks. Stans, when informed the Mexican drafts totaled $89,000 replied
that Sloan had told him $100,000 in Mexican bank drafts had been received and
this is all he knew about the matter. Stans could offer no explanation as to how
these bank drafts came into Barker's possession nor was he aware of the iden-
tity of the American firm which allegedly made this contribution.
When Stans was requested to make Sloan available for immediate interview,
he advised that Sloan had resigned two weeks ago. Sloan was subsequently con-
tacted on July 17, 1972, and he declined to be interviewed until he had a chance
to discuss this matter with his attorney.
Interviews at the White House: Everette Howard Hunt and George Gordon Liddy
were known to have been employed at the White House as consultants and \yhite
House telephone numbers used by these individuals were found in subjects'
possession. Accordingly, various White House staff members acquainted with
Hunt and Liddy during their White House assignment were interviewed.
53
At the request of Mr. John W. Dean, Legal Counsel to the President, he, Dean,
sat in on all interviews conducted with White House personnel. Those interviewed
included Charles W. Colson, David R. Young, Alfred Wong, Bruce Kehrli, Fred
Fielding and Kathleen Chnow. All stated they were unable to furnish any infor-
mation concerning Hunt's or Liddy's involvement in these matters involving the
burgulary of the Democratic National Committee Headquarters.
According to Mr. David R. Young, both Hunt and Liddy worked for him on a
project to classify and declassify Government documents.
It was determined from Mr. John Dean that the personal effects of Everette
Howard Hunt had been removed on June 20, 1972, from Hunt's office in the
Executive Office Building and brought to his. Dean's, office. This material which
was turned over to the FBI on June 27, 1972, included ancillarj^ equipment for
the transceivers and other equipment identical to items known to have been
purchased by James Walter McCord, Jr. [The June 27 date was subsequently
changed to June 26.]
Interviews at Committee to Reelect the President: Numerous interviews were conducted
with personnel employed at the Committee to Reelect the President and in each
interview at the Committee's insistence an attorney of the Committee was present.
Several persons subsequent to interviews conducted at the Committee contacted
the FBI Washington Field Office and requested to be further interviewed away
from Committee headquarters and without the knowledge of Committee officials.
These persons advised that the presence of the attornej' during the interview
prevented them from being completely candid. These sources further advised
that all Committee people subpoenaed before the Federal Grand Jury were
subsequently debriefed by Committee attorneys as to what occurred at the
Federal Grand Jury hearing.
One of the foregoing persons confidentialh^ advised that Hugh Walter Sloan,
Jr., who supervises Committee finances reportedly maintains a brief case full of
money in his office safe. During the period February — April, 1972, according to
this source Sloan allegedly disbursed large sums to various Committee officials
for unknown reasons such as $50,000 to Jeb Magruder, $100,000 to Herbert L.
Porter and $89,000 to George Gordon Liddy.
Another cooperative source at the Committee advised confidentially that Com-
mittee officials during interviews were sending FBI Agents on fishing expeditions
to keep them from getting to the truth. This source advised that Mrs. McCord
following her husband's arrest on June 17, 1972, told Committee official Robert
Odle words to the effect "Well, it looks like your project failed." This source
identified Odle as one of the individuals who was less than candid in his interview
with FBI Agents.
Photographs of Democratic Party Correspondence: On June 22, 1972, Michael
Richardson, Rich Photos, 1600 W. Flagler Street, Miami, Florida, advised that
about noon, Saturday, June 10, 1972, one white male who he tentatively identi-
fied from a photograph as Bernard Barker, came to this store which is located in
a heavily populated Cuban area. This individual presented two rolls of exposed
Kodak tri-X black and white 35 millimeter film on which he said documents had
been photographed. He requested immediate development and printing of 8 by 10
prints. Richardson did a rush job and determined there were four exposed docu-
ment negatives on one roll and 34 document negatives on the other roll for a total of
38 exposed negatives. Richardson made one 7 by 10 print of each of the 38 neg-
atives.
Richardson said most of the documents had an emblem and were headed
"Chairman Democratic National Committee." The documents photographed
appeared to have been on onion skin paper and most were typed. A few consisted
of handwritten notes. On at least one of the documents, there was the signature
"Dick." Several letters had the handwritten name of Lawrence O'Brien. One or
more of the documents concerned a resume of an unrecalled woman who headed
a local campaign for Senator Hubert Humphrey. Richardson said all documents
were photographed with a shag carpet background and hands covered with
clear-type gloves held down each corner of each document.
Richardson made no written record of the transactions and maintained no
copy of the negatives or prints. Richardson tentatively identified one of the two
men who accompanied Barker as being Fiorini, but was unable to identify the
third man.
Investigation at the Howard Johnson Motel, 2601 Virginia Avenue, N.W.,
Washington, D.C., determined the carpet utilized by the motel is similar to that
noticed in the photographs by Richardson.
Direction of Investigation: Investigation is being directed to developing evidence
of an Interception of Communications violation against not only the subjects, but
54
all those who may have assisted them such as who recruited them, who financed
the operation, who planned the operation, etc. Section 2511, Title 18, U.S. Code,
makes it a violation for anj-one to willfully intercept, endeavor to intercept or
procure any other person to intercept or endeavor to intercept any wire or oral
communication. It is also a violation of that Section for anyone to willfuUj- use,
endeavor to use or procure any other person to use or endeavor to use any elec-
tronic, mechanical or other device to intercept any oral communication. The
possession of anj^ electronic, mechanical or other device whicli is primarily useful
for surreptitious interception of wire or oral communications is a violation of
Section 2512, Title 18, U.S. Code, provided the device or any component thereof
has been sent through the mail or transported in interstate or foreign commerce.
Section 371, Title 18, U.S. Code, the general Conspiracj'' Statute, makes it an
offense if two or more persons conspire to commit anj^ offense against the United
States.
Senator Ervin. In other words, so far as you know that proposed
letter never was sent?
Mr. Gray. I know it was not sent.
Senator Ervin. I have seen statements in the press to the effect
that the Attorney General stated in substance that such investiga-
tion as was made in respect to the action of Mr. Segretti did not indi-
cate the commission of a crime on his part and for that reason the
investigation into his activities was not as complete as it was with
respect to the other aspects of the Watergate.
Mr. Gray. I wouldn't sa}^ that because the aspects of the investiga-
tion of Segretti with regard to any participation in a crime against the
United States was as thorough and as complete as any other. But we
were dealing with a crime and we were not dealing with political activ-
ity and we did not investigate into the political activity of Segretti,
but we did investigate into his involvement with violations of law with
regard to the intercepted communications statute.
Senator Ervin. Thank you very much.
I want to say, Mr. Gra}^, you made a very moving and very elo-
quent statement.
Mr. Gray. Senator Ervin, I appreciate your comment.
The Chairman, Senator Hruska?
Senator Hruska. Thank you, Mr. Chairman.
Mr. Gray, I want to welcome you to the committee.
Mr. Chairman, this nominee is no stranger either to the committee
or to any of its individual members. For a little over 2 years now we
have had the benefit of his judgment and his counsel incident to the
several high Government positions he has occupied.
Mr. Chaimian, I believe that Pat Gray has the personal attributes
and the experience that will, in ni}^ judgment, make him a very fine
Director of the FBI. I say that not only on the basis of the personal
and official association that we have maintained over the past 2 years
but also upon the basis of an examination of the record which has been
made available to us. This includes the portfolio of speeches, some 35
in number, which I have carefully read and his replies to the question-
naire submitted to him by the Department of Justice at an earlier time
when he was being considered for nomination as a circuit judge.
With regard to the questionnaire, I want to say that i not only
read it — I studied it. It is a very profound document in that it goes
into considerable detail with respect to Mr. Gray's private legal ex-
perience as well as his experience with the Government. It details
the litigation in which he was engaged — in most instances as sole
counsel. It is an admirable record, accompanied by a superb personal
statement.
55
It is on this basis of the record and our long association, that I have
reached the conclusion that I ^vill support the nomination of Mr, Gray
for Director of the FBI.
He has been serving since May of 1972 as Acting Director of the
Bureau. Since that time, he has been the object of some criticism and
complaint. It is, of course, the committee's duty to consider these
changes further during the course of these hearings.
However, it will take a clear preponderance of the evidence, to
charge my present judgment on the nominee's qualifications.
Anj^one appearing before this committee is entitled to a fair and
forthright hearing, and I know^, Mr. Chairman, that under 3'Our
leadership, that is exactly the t3^pe of hearing we shall have here.
Upon the basis of these hearings, of course, we will make our recom-
mendation to the Senate.
Again I want to say I am gratified that you are here Mr. Gra}^ and
to indicate that I am very impressed with the summary of your
activities since you undertook the acting directorship of the FBI.
Mr. Gray. Thank you, Senator Hruska.
Senator Hruska. Thank you, Mr. Chairman.
The Chairman. We will recess now until 2:30.
(Whereupon, at 12:30 p.m., the committee was recessed until 2:30
p.m. of the same day.)
AFTERNOON SESSION
The Chairman. The committee will come to order.
Senator Hart.
Senator Hart. Mr. Chairman, thank you.
Mr. Gray, welcome. I was very late getting in this morning and I
apologize. I was one of the few successful fellows in getting a doctor's
appointment so I had to keep it.
TESTIMONY OF LOUIS PATEICK GRAY III— Eesumed
Mr. Gray. You should today, Senator, they are precious commodi-
ties.
Senator Hart. On Monday, you were gracious enough to stop at the
office and I did indicate to you areas of concern, shared by others, I
am sure, on the committee, that we would w-ant to have developed for
the record.
Inasmuch as I was not here this morning, either to hear your state-
ment or the bulk of the questioning, I hope I am not repetitious. If I
am, please tell me.
The Senate and the public would hope that these hearings would be
helpful in providing information in two somewhat separate and dis-
tinct areas.
The first involves your performance in the admittedly brief tenure as
Acting Director. Questions there have been raised about whether the
Bureau is becoming more politicall.y responsive to the White House, or
at least more politicized. I am told that you made reference to that in
your prepared statement and I am sure we would want to clarify that
for the record.
The second area the committee and the public would want de-
veloped, if possible, involves really not you personally but certainly
56
your own views with respect to it are important, and this is the
structure and policy of the Bureau, the organization and the poUcies
and the practices of the Bureau. In this area, I am told, there has been
precious little congressional oversight since the early 1920's. That is a
long time and the agency has become immensely important, and, while
recognizing the necessity for it, increasingly Americans sense its poten-
tial hurt in the kind of free society we seek to develop here. In the
past few years there have been some suggestions made about improv-
ing some aspects of the Bureau's operations and I would like to discuss
those with you, too.
However, it would seem to me, Mr. Chairman, that I should not get
at this time into the broader structure and policy questions. The
questions I heard of Senator Ervin's, and I am sure others, bear on the
first; namely, the nominee's record as Acting Director. It might, for
continuity and understandability, be better if we stayed on the period
as Acting Director and the issues involved there, and defer the struc-
tural questions, if that is what we may call them, until later. I will
proceed that way.
This morning, when I was here, you did discuss with Senator
Ervin the newsstory that indicated that, at or about the time of the
Republican Convention in Miami, a report, or several FBI reports^
were shown to an individual who was a potential or did become a
grand jury witness. This bears on the Watergate as it had developed
up to that point.
You explained that, while you were not in position to say that this
had or had not happened, you had asked John Dean in the White
House whether the story was correct and that Mr. Dean said to you
"I didn't show them to the subject and didn't have them with me."
That is a fair summary?
Mr. Gray. That is correct; that is correct, Senator.
Senator Hart. Now, tell me again, help me to understand, why
it would be possible that a Bureau file or files would be in the hands
of somebody at the Republican Convention.
Mr. Gray. I don't know that I can explain that a Bureau file
or files were in the possession of somebody at the Republican Conven-
tion, but I can start from ground zero as I did this morning and explain
exactly what I had explained to Senator Ervin, which is essentially
this: That at the outset of this investigation I resolved that the
investigation would be very closely held. There were those contacts
between the case agents working the case and the assistant U.S.
attorneys who were also working on the case here in the U.S. attor-
ney's office. There were also those contacts in the Federal Bureau
of Investigation in the General Investigative Division which had
cognizance of this case, with the office of the Assistant Attorney
General, Criminal Division, where the information was also closely
held.
Then I went on to say that at the very outset, and in accordance
with standard FBI operating procedures, there was a memorandum
prepared setting forth facts and circumstances of the case as of that
date, June 19, 1972, and accompanying that memorandum was a
letterhead memorandum, which is a type of writing that we have
in the Bureau, and a letter transmitting this memorandum of facts
and circumstances, one to the Attorney General, and one to Mr.
Haldeman, and I nixed that. I said, "No, we'll not do this."
57
Then I went on to say that over the ensuing days there were reports
dehvered to Mr. Petersen, interviews, you know, our FD-302's,
our raw interview forms, and our teletypes, and I went on to say I
would put a listing of these deliveries and the dates of delivery into
the record as an exhibit.
Then I went on to say that on the 19th of July, it was requested
by Mr. Dean, acting in his capacity as Counsel to the President of
the United States, and in discharge of his responsibility, to inquire
into the involvement of White House people on the staflF of the
President in this matter and make a recommendation to the President,
and that he wanted a full report in writing.
I then asked for an opinion of our Office of Legal Counsel, and the
opinion came back that at our own initiative we had no duty to fur-
nish such a report, but that the request of the head of the executive
branch of the Government was certainly an entirely different matter.
Then, on the following day I ordered that a letterhead memorandum
summarizing the investigation to date be prepared, and be sent to
the Attorney General. I have every reason to believe, and I must
assume, that in the normal course of events, although I cannot testify
under oath as a fact, that this letterhead memorandum was delivered
to Mr. Dean. I believe it may have been but I cannot testify as to
the fact under oath that it was, because I don't know.
Then, following that, Mr. Dean made a request to me that I pro-
vide him with copies of our FD-302's, our interview reports, our tele-
types, and those documents that had been made available to me in
order to assist him in the performance of his duties, and I did.
Then I said this morning in a response from Senator Ervin when
he asked me is it possible to conclude that this could have occurred,
this showing to Segretti, and I said, "Yes, Senator, it is possible that
it could have occurred." But when I read the newsstory, I called
John Dean and asked him if he did this, and he said, "No, I did not
have any FBI reports with me at Miami."
And why did I call John Dean? Because he is the only person over
there who had custody of these reports.
Senator Hart. You were sufficiently — you thought the matter
sufficiently serious, and certainly it was, that when you saw, or the
newsstory was called to your attention, you did call Mr. Dean and
inquired if, in fact, it had happened?
Mr. Gray. Yes, I did, Senator, and as a matter of fact, to more
fully inform you, every newsstory that has been written regarding
this case we have checked very, very carefully just as an adjunct to
our own investigative efforts which preceded some of these stories by
as much as a month to 6 weeks in time.
Senator Hart. When Mr. Dean said to you "No, I did not do it,
I didn't have the FBI reports with me," did you ask him if he knew
who might have had them with him?
Mr. Gray. No; because the thought never entered
Senator Hart. Did you ask him whether anybody had done it?
Mr. Gray. No, I didn't, because the thought never entered my
mind. You know when you are working closely with the office of the
Presidency the presumption is one of regularity in the conduct of the
Nation's business, and I didn't even engage in the thought process
that I would set up a presumption here of illegality and I didn't
consider it.
58
Senator Hart. There would have been illegality or irregularity if,
in fact, that report had been shown to the man in Miami?
Mr. Gray. Absolutely, I would classify it as a grievous and most
serious breach of trust.
Senator Hart. Except for asking Mr. Dean did he or not, you are
just presuming regularity, there has been no investigation beyond
the inquiry to Mr. Dean?
Mr. Gray. No, I did not and I have got to engage in that
presumption in the position I am in. This was the individual to
whom I had given the reports. I gave them to him for a specific
purpose and I am certainly not going to engage in a presumption he
did something else with them and I did not check it.
Senator Hart. Would it have been the same if you had given them
to me and I had told you that I had not given them to anybody but
you had read in the pai)er I had?
Mr. Gray. If I were a member of the legislative branch and was in
the position such as I found myself in relation to the President, it
would have been the same. Senator.
Senator Hart. Presidents have been known to have fallible servants
and worse.
Mr. Gray. This is true. This is true.
Senator Hart. Then what agency, if not the Bureau, would we
expect to pursue them?
Mr. Gray. I saw no reason under the circumstances to pursue it.
I asked the individual to whom I had given them. He could tell
from the tone of my voice I was really ticked, and he gave me what I
believe to be an honest answer. Hes aid, "Absolutely not. Under no cir-
cumstances would I do such a thing."
Senator Hart. If your investigation had shown that somebody in
some fashion imoroperly obtained, from Mr. Dean's desk or file, that
document, Mr. Dean also would have been ticked, I suppose?
Mr. Gray. That is correct.
Senator Hart. But he would have kno\\Ti whether impropriety
had been involved?
Mr. Gray. That is correct, Senator. But these are not, you know,
just documents. These documents have been very, very, very
carefully watched and accounted for, and inventoried all throughout
the chain. This was not a course of action that I even considered at
the time. And I don't consider it now — I really don't.
Senator Hart. Well, the presumption runs in favor of Circuit Court
of Appeals judges, too, and even there inquiry has developed
im])roprieties on occasions.
^Ir. Gray. This is possible. The human fallibility is there.
Senator Hart. That is right. Why wouldn't you think of that and
attempt to determine whether, in fact, it did occur?
Mr. Gray. Well, I didn't.
Senator Hart. Why didn't you?
Mr. Gray. Senator, because I reasoned that I asked the man a
straight question with, an awful lot of ire and hritation in my voice,
and I feel I got a straight answer back.
Senator Hart. Well, all that that investigation determined was
that Mr. Dean didn't do it.
Mr. Gray. That is correct, sir.
Senator Hart. But
Mr. Gray. And I know
59
Senator Hart. There are other possibilities. The kind of FBI
document that had been disclosed at Miami did reach, as you have
already told us, the U.S. attorney's office; they had copies, the
Justice Department itself had copies. You asked Mr. Dean if the
disclosure had been as a result of his showdng the documents, and
he said no, but we still don't know whether somebody else did.
Mr. Gray. No, but the situation was such that 1 made the decision
on the scene, at the time, for considerations that 1 deemed to be
proper, and it is a decision that 1 made. It is a decision that 1 am
accountable for, and if the members of this committee judge it to
be an error, so be it. 1 did not judge it to be an error.
Senator Hart. Well, there is nothing easier than being a Alonday
morning quarterback, when the heat is off and excitement has passed.
But if you had pursued the investigation, would you not feel more
comfortable today?
Mr. Gray. No, sir, because I think I would have gotten essentially
the same answer from Mr. Dean. I would have gotten "No, 1 did
not do it. Two, these were secure in my safe, and there was no way
they could get out, and nobody had access to them but me."
Senator Hart. What would you think if you had asked the U.S.
attorne3''s office, "Wliat happened to yours — did you or any of j^our
people misplace them during the period they might have been shown
to somebody in Miami?"
Mr. Gray. No, I did not consider doing that.
Senator Hart. As I say, wouldn't you be more comfortable now
if 3^ou had asked the Attorney General?
Mr. Gray. No, I would not be more comfortable because, to be
more comfortable, I would have had to engage in a presumption these
people were dishonest and performed an illegal act. Frankl}', 1 didn't
believe the allegation then, and don't believe it now.
Senator Hart. They would have done nothing illegal if somebody
had filched a file from them and showed it to somebody.
Mr. Gray. I think it is a serious breach of trust, and I don't think
it is conduct of the kind
Senator Hart. What about Segretti himself? Do 3'ou think that it
would have been desirable to ask him who showed it to him?
Mr. Gray. No, I didn't consider that, either. I don't think an}' of
my investigators
Senator Hart. We never will know whether that happened?
Mr. Gray. That is right. There may be an opportunity later on. I
don't know what the investigation is going to show as it continues, you
know. There are still some steps to be taken, as j'-ou know, Senator.
Senator Hart. Well, after a brilliant 9 months as a U.S. attorney
in Detroit, I am just going to say I think a U.S. attorney, dealing
with an agent with a presentation like that, might have said "Why
don't you ask those fellows?"
Mr. Gray. Well, suffice it to say that no one sent an}^ type of a
recommendation to me that we do this sort of thing. I think if anybody
in the Federal Bureau of Investigation, or in the Criminal Di^^sion,
or in the U.S. attorney's office, had thought that we should pursue
this, that suggestion would have been made to me. I made the decision
as soon as I read the newspaper article — and I can remember reading
it — to call Air. Dean immediately'. And I am satisfied
60
Senator Hart. That is why, on a Monday morning, it seems so
strange. You recognized the newspaper was reporting an illegal action.
It could have involved a number of people apparently. You called
one, and he said "I didn't do it." But even now we don't know what
these other fellows, who had the documents, did.
Mr. Gray. Senator, who would have been the most obvious person
to have done something like that if it was done? It wouldn't be in the
U.S. attorney's office, it wouldn't be in the Criminal Division, it would
have been somebody outside of that gamut, you know, unless it was
somebody who, well, was a fellow really grabbing those papers. I say
to you again that I considered all the factors, I made the decision, and
I am accountable for the decision; I would likely make the same
decision again.
Senator Hart. But you are left, as you replied to Senator Ervin, in
a position where you cannot either affirm or deny that the thing
occurred.
Mr. Gray. No, I cannot.
Senator Hart. In the discussion with Senator Ervin involving Mr.
Segretti — my notes seem to suggest here — you said you investigated
him for possible criminal action but did not investigate alleged
political activities. Now, as I get it, Segretti's name came up when
leads involving Watergate figures were being followed, and at some
point in that Watergate story there were suggestions that Segretti had
sabotaged the presidential campaign, or had sought to engage people
who were alleged to have left false messages and infiltrated, and so on.
Is that what you meant by political activity of Segretti?
Mr. Gray. Yes, that is what I meant, Senator. And actually, you
know, we interviewed Segretti very early in the game, on the 26th of
June, and when these newspaper accounts came out, this was new
information to us because these were things that Mr. Segretti had
not told us. What I did at that time was to ask once again my Office
of Legal Counsel whether or not on the basis of the information made
available to us, Segretti had committed any offenses within our
jurisdiction. That opinion was, no. But I still said, "Check with the
Department of Justice." That opinion came back, no, and we were not
directed to do any further investigation over on this side of the fence
with regard to whatever Segretti was doing in answering — in asking
questions, setting up any kind of a network, or whatever it was, he
didn't tell us about it. The only thing we had to go on was the news-
paper accounts of what he was alleged to have been doing. But we
made the checks in the Federal Bureau of Investigation, because I
knew this question was going to come up, and I wanted to meet it
head on, and we did.
Senator Hart. So far as you know, did anybody investigate Segretti
with respect to the so-called political activity including the infiltration
and espionage and so on of a political campaign?
Mr. Gray. Senator, however you want to characterize it, we did
not interview Segretti or investigate into any of the political machina-
tions in which he is alleged to have indulged.
We interviewed him on the basis that he participated in Watergate
or he didn't. He fell within the IOC statute, intercepted communica-
tion statute, or he didn't.
61
Senator Hart. Wiiat if some of those other activities involved the
CoiTiij)t Practices Act or Federal campaign laws, but did not involve
Watergate?
Mr. Gray. Certainly under those cases I would have assumed that
the Department of Justice would have said yes.
First, I would have assumed that my own Office of Legal Counsel
would have said, "Yes, there is sufficient information here to establish
that he falls within the perimeter of the statute and we should in-
vestigate it."
Then I would assume that the Department would have given me
such opinion. On the basis of the information I had, I don't think any
opinion to investigate it would have been justified.
Senator Hart. In an answer to Senator Ervin, and in your answer
to my question raising the same fact, you said that, earlier in the
investigation of Watergate, a letter, a summary of the case to date,
something like that, had come up through regular channels to you,
and one was addressed to the Attorney General and the other ad-
dressed to Mr. Haldeman.
Mr. Gray. That is correct, sir, and I also said that it came up
through the channels without any initiation or instigation on my part.
It was part of standard operating procedure within the FBI,
Senator Hart. Is it still standard?
Mr. Gray. To do what?
Senator Hart. To have a summary of progress in a criminal
investigation?
Mr, Gray. Yes, it would be, but in this case ■
Senator Hart. Reported to the White House?
Mr. Gray. Yes, it would be. But in this particular investigation at
this particular time, I wanted to hold every single thing as close as
I could hold it, and during, as it turned out, during the first week
there were two leaks
Senator Hart. I am not a good questioner, but I must be especially
bad today. That answer would suggest to me that every FBI progress
report finds a copj^ sent to the Wliite House, and I know you clon't
mean that.
Mr. Gray. No.
Senator Hart. I am trying to find out why.
Mr. Gray. I am talking about the major cases.
The Chairman. Let us have order.
Mr. Gray. Wliat we call major special cases. We don't send that
information over all the time, but in a major special case the White
House is kept informed of progress ; or if the case happens to involve,
let's say, the Department of Agriculture, the Department of HEW,
the Secretary is kept informed. There are cases, however, Senator
Hart, in which we make a decision not to keep people informed for
reasons of our own choosing because we think that leaks might occur.
This very often happens in cases involving fraud against the Govern-
ment, for example. This is a specific example. We protect what we
call in the FBI the Bureau's investigative interests.
Senator Hart. At some stage there was concern that the White
House was concerned in this case.
Mr. Gray. I think there was the possibility right on the first day,
as I testified earlier this morning.
91-831 — 73 5
62
Senator Hart. Why would it be normal
The Chairman. Phil, let him answer.
Mr. Gray. As I testified earlier this morning-, 3:45 p.m.. Pacific
daylight time, when we in the FBI learned that Mr. McCord was
the secmity officer of the Committee To Re-Elect the President, that
right away posed the possibility that we had a very touchy situation
on our hands, no question about it; we were very well aware of it.
Senator Hart. Aware that it might involve the White House?
Mr. Gray. Yes.
Senator Hart. Why would this flow of information go to the White
House?
Mr. Gray. Because investigators who start this process down at the
bottom, not being, perhaps — and I am, you know, engaging in sj)ecu-
lation now — not being, perhaps, as knowledgeable as the u[)per level,
proceeded in the standard BiuTau manner.
I have alread}' offered, and the offer was acce])ted this morning, to
introduce those documents into evidence, and they would be a ])art
of the record. I stopped it. That is part of the thing, Senator Hart,
that I think I am paid to do u}) there, to exercise some judgment, and I
think I exercised that judgment in that particular instance.
Senator Hart. W^ell, in order to stop the possibility of leaks, and
you Avere concerned about the i)ossibility, you felt that the letter ought
not be sent to Mr. Haldeman?
Mr. Gray. I didn't even think it ought to be sent to the Attorney
General. I stopped both of them.
Senator Hart. Why didn't you haA^e the same unease with respect
to the possibility of the leaks of the FBI reports that 3'ou asked ^Ir.
Dean about?
Mr. Gray. There were several reasons. One of them, of course, is
the presumption of regularity that I spoke about earlier, plus the fact
that some 30 or more days had trans])ired, and we hit with the in-
vestigative shock effect that we wanted to hit with, so there are two
very good reasons, and no reason to assume that Mr. Dean was going
to turn right around and do what he is alleged to have done or what is
alleged to have been done in the Segretti case. There were
Senator Hart. I am not even suggesting that Dean did it. I am just
suggesting there are others who, it might have occurred to me, it "\\ ould
have been wise to follow up.
Mr. Gray. I told you, Senator Hart, we did begin to loosen up and
we did begin to send investigators in and we did have contact with the
Assistant U.S. Attorney, so information Mas flowing in the normal
Bureau investigative process.
Mr. Petersen, who is the Assistant Attorney General in charge of
the Criminal Division, tells me in the earl}" days onl}^ he and his Spe-
cial Assistant had access to the information that I was providing him.
Senator Hart. In the course of the W^atergate investigation, did
3'OU, from investigators under you in the Bureau, or through the U.S.
Attorney's Office, have requests or recommendations that the Bureau
interAdew particular people?
Mr. Gray. Very few of them, very few of them, because I tiu'ned
the Bureau loose, as I testified this morning. I pushed the button, I
said, "No holds barred, give it the full court press," and they didn't
have to come around every time they wanted to interview somebody
and ask me and they didn't do it, Senator.
63
Senator Hart. Except on a few occasions?
\lr. Gray. That is right.
Senator Hart, ^^^lat were those?
Mr. Gray. One of them, I think — the matter of whether or not
to interview John Ehriichman came up and, of course, you know tliis
is getting pretty high, and they thought they had better get the boss'
permission before they went that high, and I checked ^^'ith Assistant
Attorney General Petersen and I said, "Go."
Senator Byrd. You said what?
Mr. Gray. I checked witli Assistant Attorney General Petersen
and said "Go."
Senator Hart. Was there anyone not a Government official where
they questioned you or said should the^^ speak to that person?
Mr. Gray. They recommended to me that the}^ interview?
Senator Hart. Or a person they asked to interview?
Mr. Gray. None that I can think of. Maj^be if you tell me the
name of the person you have in mind I may be able to help a^ou.
Senator, because there were several things that came up where I
momentarily said, "Stop until I check this out to see what kind of a
trail we ^\'ill cross," anil it had nothing to do \\'ith politics. It had to
do with national security. But I ^\-ill tell 3'ou the names of those
people. But if 3'ou tell me the name of the person 3'ou have in mind,
I can maybe be more helpful.
Senator Hart. Xo; it just occurred to me that, in as dramatic a
case as this, there might have been highly sensitive although non-
governmental individuals who some agent thought might be able to
provide some information but because of the sensitivity of the person
he would go to you.
Mr. Gray. Well, some of those I initiated on ni}^ own, as I read
certain reports, where I said to hold up until we check this out because
of the fact there might have been some national security overtones
involving another agency. Then when I got clarification and assurance
that this did not exist, we went ahead.
Very simply, part of that was involved with the $89,000. We ran
that down, we ran it do\\'n early in the game.
The Chairman. You are speaking of the CIA now?
Mr. Gray. Yes; I am, Mr. Chairman.
The Chairman. All right.
Senator Hart. I take it your concern about a possible CIA lead
would relate to national security? Do I so understand that?
Mr. Gray. Yes, Senator; that is true.
Senator Hart. But what I am attempting to get is the name of,
the identification of, anyone in addition to Mr. Ehriichman, whether
in or out of Government, investigators of yours came to you and
said, "I think we ought to see him or her," and did j^ou condition
approval or did you deny approval?
Mr. Gray. No, I never denied any requests at all.
I placed no restriction or limitation other than these I have men-
tioned where I said, "Pause until we check and then we will crank up
speed," but here is what I will do, Senator Hart. I will check the
record again with our investigators to ascertain from them one more
time if there is anybody they had in mind to interview that they
either recommended to me or did not recommend to me.
64
I cannot think of one, I cannot think of one now. We will check the
record and we will supply information in res]3onse.
Senator Hart. Would 3"ou make the same check with res]:)ect to
any proposed documentary investigations that might have been
suggested to you, such as phone records and bank accounts?
Air. Gray. Phone records and bank accounts?
Senator Hart. Phone records and bank accounts.
Mr. Gray. Yes, I know there was a rumor running around, and I
would like to address myself to this. It was that the first week Gray
was going to collapse this investigation in 24 or 48 hours, and that
Gray was not going to permit his agents to subpena Colson's toll
calls.
Senator Hart. Colson's what?
Mr. Gray. Colson's toll calls at the White House, and I called the
Washington field agents into my office on Saturday, June 24, and I
told them these leaks appeared in the paper and I called them in and
said, "One, you know that both are false; two, you know that agents
of the Federal Bureau of Investigation cannot suffer from flapjaw.
We cannot talk and gossip about our cases," and I literally put my
track shoes in their back, and then again I gave them a strong verbal
direction that we were going to press this investigation to the hilt.
On the same morning I was apprised that rumors were running
around town that INIr. Lawrence O'Brien was unhai)py with the
FBI, that we were dragging our feet. I picked ui) the telephone and
called ^Jr. O'Brien and Mr. O'Brien told me he was not unhappy at
all, that we were all over the place and he was very happy the way we
were pursuing this.
So you may have had reference to the Colson toll call records. I
don't know whether you did or not. I don't know whether you had
reference to the 24- to 48-hour collapse, but. Senator, I am going to
answer e^^ery question you want me to answer, and I am going to
answer it for you straight.
Senator Hart. Well, you promised to provide for the record
Mr. Gray. Yes, sir.
Senator Hart (continuing). The names of individuals in and out of
Government with whom an interview^ Avas suggested and 3'ou either
said no, or attached a condition to it. And will j'ou do the same with
respect to documentary investigating materials?
Mr. Gray. Yes, sir, I will be pleased to do that.
(Mr. Gray subsequently submitted the following document:)
Mr. Gray. After researching the matter, Senator Hart, I find that the only
restrictions which I phiced upon any of the investigation, either interviews or
relative to documentary materials, were on account of national security
considerations. These considerations were resolved within a very short period of
time and all interviews which were desired were conducted and all documentary
material which we wanted to review was obtained.
Senator Hart. Now, you talked to Mr. Dean in the White House
about this case; you talked to the Assistant Attorney General in
charge of the Criminial Division, I suppose?
Mr. Gray. Yes, sir.
Senator Hart. With the Attorney General at the time?
Mr. Gray. With the Attorney General at the time?
Senator Hart. In the course of the Watergate investigation, did
you discuss the course of the investigation with the Attorney General
or prospects as you saw them?
65
Mr. Gray. I didn't discuss with him as to how I was to conduct
this investigation other than tlie early days. The first day, as a matter
of fact, June 17, when I gave the orders that it was to be aggressively
pursued, this report was made to him b}^ my No. 2, and he agreed
with it, to pursue it aggressively. At no time did I receive any
direction from him as to how to conduct the investigation; but, 3-es,
I did make progress reports to him.
Senator Hart. Did a^ou discuss the course of the investigation or
the prospects with the former Attorney General, Mr. Mitchell?
Mr. Gray. I did not.
Senator Hart. Did you discuss the course or prospects of the in-
vestigation with anyone not working either full-time for the Wliite
House or the Department of Justice?
Mr. Gray. Gee, that is a pretty broad question.
I don't know to whom you would be referring.
Senator Hart. Anybody outside of Government?
Mr. Gray. 1 can think of newspaper men, I can think of visitors —
and I would have to review that, but my natural inclination is to
answer no, that I would have no reason to do this. In fact, in all the
press availabilities and all the rest of it, I was first under the pro-
hibition of the regulations of the Department and then under Judge
Sirica's order so m}^ natural inclination is no. But that is such a broad
question I hesitate to answer it, but j^et I will answer it, no.
Senator Hart. I could narrow it, I suppose, by saying, excludmg
newspaper and media people?
Mr. Gray. Because 1 did talk procedurally, 3^ou Imow, in nw press
availabilities. 1 w^ould tell them how 1 was domg.
Senator Hart. Yes, but I am now excluding the media.
Mr. Gray. Yes.
Senator Hart. But including, by wa}^ of suggestion, not to make it
multicategory, persons who had an association neither with the
Wliite House nor the Department but with the Committee to Re-
elect the President?
Mr. Gray. No, sir. No, sir.
Senator Hart. Like Republican Party officials.
Mr. Gray. No, indeed. No, indeed.
Senator Hart. 1 have a note here on the Ehrlichman letter. Could
you provide us with information regarding the request which the
FBI relayed from the White House to the FBI field offices asking for
information on local law and order issues relative to the campaign?
Let me enumerate the items and it may be that you will want to
provide them for the record: The text of the request from Mr. Ehrlich-
man or his assistant, and I am told it was his assistant; any mternal
FBI memorandum or comment regarding whether or how^ the request
would be implemented; the text of the message which w^ent out to the
field offices; and the text of the material furnished to the \^Tiite House
or Justice Department for transmittal to the White House.
Mr. Gray. Yes, sir; I would be glad to do that. Senator. In fact,
this morning I got Senator Ervin's permission to put that type of
material in the record and I believe the only exception would be the
response of the White House and we will provide that.
66
(Mr. Gray subsequently submitted the following documents:)
Memorandum
September 8, 1972.
To L. Patrick Gray, Director, FBI.
From Ralpli E. Erickson, Deputy Attorney General.
Subject: Information for Campaign Trips: Events and Issues (Attached White
House ^Memorandum) .
Would you undertake to evaluate'the questions asked of us by John Ehrlichman
in the attached memorandum and give me the benefit of 3'our response.
Although we are be.vond the due date of this memorandum already, please make
your response as quickly as possible.
The White House,
Washinglon, D.C., September 1, 1972.
Memoraudum for the Deputy Attorney General.
Subject : Information for Oampaign Trips : Events and Issues.
In order for John Ehrlichman to give the President maximum svipport during
campaign trips over the next several weeks, the following information is required
for each of the States listed at Tab A.
(1) Identification of the substantive issue problem areas in the criminal justice
field for that particular state. Please limit yourself to problems of sufficient
magnitude that the President or John Ehrlichman might be expected to be aware
of them. Brevity is the key, and often all tliat is necessarj' is to flag a sensitive
problem so it can be avoided or more extensive jjreparation can be undertaken
should we choose to speak about it.
(2) k list of events relating to the criminal justice area that would be good for
John Ehrlichman to consider doing. For each suggested event, the following
items should be indicated:
(A) Purpose of tlie event.
(B) The nature of the group or institution involved.
(C) The content of the event.
(D) Names of specific peojjle who can be contacted for the purpose of
setting it up (tf)gether with titles, addresses, telephone numbers, etc.).
(E) All trade-off factors to be considered in scheduling the event.
I am receiving separate materials from both LEAA and DALE, so you should
omit any consideration of problems in the area of Federal aid or drugs. I would
expect your list of problems to be fairly brief, but there are certainly criminal
justice problems (such as the Fort Worth Five) that we should flag for the
President.
I know this is rushing you, but I need the information by close of business,
Thursday, September 7, 1972.
Thanks, Ralph.
Geoff Shepard.
California (San Francisco and Los New Jersey
Angeles) New York City
Connecticut Ohio
Florida Pennsylvania (Philadelphia and
Georgia CAtlanta) Pittsburgh)
Illinois (Chicago) South Dakota
Massachusetts Tennessee
Michigan Texas (San Antonio)
Missouri (Kansas City)
9/8/72
(Teletype) (Plaintext) (Immediate)
To SACS
San Francisco Kansas City
Los Angeles Newark
New Haven New York City
IVIiami Cleveland
Tampa Cincinnati
Jacksonville Pliiladelphia
Atlanta Pittsburgli
Chicago Minneapolis
Boston Knoxville
Detroit Memphis
San Antonio
67
From Acting Director, FBI
Inquiry From White House
Following memorandum received from Wliite House:
"In order for John Ehrlichman to give President maximum support during
campaign trips over the next several weeks, the following inforination is required
for each of the states listed.
(1) Identification of the substantive issue problem areas in the criminal justice
field for that particular state. Please limit yourself to problems of sufficient
magnitude that the President or John Ehrlichman might be expected to be aware
of them. Brevity is the key, and often all that is necessary is to flag a sensitive
problem so it can be avoided or more extensive preparation can be undertaken
should we choose to speak about it.
(2) A list of events relating to the criminal justice area that would be good for
John Ehrlichman to consider doing. For each suggested event, the following items
should be indicated:
(A) Purpose of the event.
(B) The nature of the group or institution involved.
(C) The content of the event.
(D) Names of specific people who can be contacted for the purpose of
setting it up (together with titles, addres-;es, telephone numl^ers, etc.);
(E) All trade-off factors to be considered in scheduling the event.
"Receiving separate materials from both LEAA and DALE, so you should
omit any consideration of problems in the area of federal aid or drugs. Would
expect your list of problems to be fairly Ijrief, but there are certainly criminal
justice prt)blems (such as the Fort Worth Five) that we should flag for the
President."
In accordance with above, you should submit Ijy immediate teletype to be
received by the Bureau no later than eight A.M., Monday, September eleventh
pertinent material which should include matters pertaining to gun control legisla-
tion, corruption in police departments, probation and parole, etc. Deadline must
be met.
U.S. Government — Memorandum
Seplemher 11, 1972.
To Mr. Bishop.
From M. A. Jones.
Subject: Events and issues (attached White House memorandum)
In accordance with the request contained in referenced memorandum, there is
attached material from various field divisions and offices of this Bureau for con-
sideration. This material has been broken down by state and locality to conform
with the listing submitted by the White House.
RECOMMENDATIONS
(1) That the attached material be approved for transmittal to the White House
through the Department.
(2) That after approval, this memorandum and attachments be returned to
your (Mr. Bishop's) office for transmittal to the office of Ralph E. Erickson
Deputy Attorney General.
Enclosures.
CALIFORNIA
A number of California Sheriffs are planning protests with U.S. Attorne}'
General and possibly airing views to news media re fact Civil Rights Division,
U.S. Department of Justice, instituted August 2.3, 1972, due process civil rights
investigations of county jails in 12 major counties in California on allegation
pretrial detainees' treatment in all California County Jails may constitute
Federal violation. These investigations currently in progress.
Ray Davis, Chief of Police, Walnut Creek, California, and President California
Chapter of the International Association Chiefs of Police, directed a letter to
Attorney General Richard Kleindienst August 1.5, 1972, expressing concern over
the remarks made by B. H. Holman, Director, Communitj^ Relations Service,
U.S. Department of Justice, at the National Convention of Police and Com-
munity Relations (PCR) officers recently held in San Francisco. Holman urged
PCR men to resist all efforts by heads of their res|)ective agencies to "whitewash"
PCR programs and turn the men into public relations officers to make their re-
spective departments look good.
68
San Francisco Bay area police officers are resentful over actions of U.S. Govern-
ment, in indicting 12 Alameda County deputies, who took part in restoring order in
1969 Berkeley riots, for civil rights violations.
SheriflP Richard Hongisto, newly elected Sheriff in San Francisco County, is a
controversial figure who has ideas on law enforcement and prison reform which do
not agree with those of other law enforcement officials and/or Bay area judges.
Hongisto was supported b}' and associated with the homosexual communitj'
during his recent election.
During the past several years California has experienced a large increase in
pornographic trafficking. The production, distribution, and sale of pornographic
film and literature have continued to increase. This increase is based on the
"favorable climate" within California, i.e., the lax attitude of local, state and
Federal judges as well as recent Supreme Court decision.
The California Chapter, FBI National Academy Associates, meets September
17-20, 1972, Palo Alto, California:
(A) To bring together FBI National Academy Associates throughout the
State of California.
(B) Law enforcement officers who are graduates of the FBI National Academy.
(C) To discuss current law enforcement problems peculiar to the State of
California.
(D) Chief John Fabri, First Vice President, Chief of Police, Fremont, Cali-
fornia, telephone 796-3232. Estimated attendance 200.
National Conference of Metropolitan Courts, October 11-13, 1972, Mark
Hopkins Hotel, San Francisco:
(A) National Convention of Judges from the Metropolitan Courts.
(B) Municipal Court judges meeting throughout the United States.
(C) To discuss problems Municipal Courts are confronted with.
(D) Judge Ray Arata, President, Superior Court, 16.5 City Hall, San Francisco,
California. Estimated attendance 200.
CONNECTICUT
Connecticut is a state which houses the principal manufacturers of firearms in
the country, and consequent!}' the question of gun control legislation would be
of keen interest to many of the residents of the state, many of whom are employed
b}' aforementioned manufacturers.
FLORIDA
The State of Florida has convened a special House Committee on Capital
Punishment in Tallahassee, Florida, to consider the legal aspects of restoring the
death penalty in Florida. The Attorney General of Florida in a memorandum to
Governor Reubin Askew dated July 7, 1972, made an analysis of the Supreme
Court decision of June 29, 1972, in "JFurman vs. Georgia, et al," abolishing capital
punishment. The Attorney General recommended the creation of a special com-
mittee to consider all aspects of the death penalty in Florida and possible new
legislation concerning this matter. Hearings were held at Raiford State Peniten-
tiary during August, 1972, Vv^here six death row inmates related that as far as
they were concerned capital punishment was not a deterrent and two of the six
stated they would rather die than spend the rest of their lives behind bars with
no hope of parole.
The special House Committee on Capital Punishment on August 31, 1972, Vjy
five to one vote, voted to look into legal means to reinstate the death penalty for
certain crimes but rejected generally the suggestion that life sentences be given
for certain crimes with no possibility of parole.
Additional hearings will be held "throughout the State of Florida during Sep-
tember and October so that final recommendations for legislation might be pre-
pared in time for a special one-day session called by Governor Askew on November
14, 1972, to consider legislation relating to the death penalty. Several prefiled
bills have been introduced into the Florida Legislature, which provided prosecu-
tion for certain offenses originally punishable by death in Florida.
There is considerable interest in recent efforts to remove Sheriff Willis V.
McCall of Lake County, Florida.
By way of background, Governor Askew ordered an investigation into the
April 23, 1972, death of Tommy Vickers in the Lake County Jail. Vickers was a
mentally retarded Negro who was in the Lake County Jail on a minor traffic
violation and subsequently died of comijlications caused by a blow to the stomach.
A grand jury in Orange County, Florida, returned an indictment against McCall
on June 12, 1972, charging him with simple assault and second degree murder.
69
Governor Askew immediately ordered the suspen.-iion of McCall and trial was
scheduled for August I'l, 1972, after McCall pled not guilty to the indictment.
On August 19, 1972, McCall was found innocent by a six-member jury who
deliberated only one hour and fifteen minutes. ]McCall remains under suspension,
but is running for re-election November 7, 1972.
McCall has long been an extremely controversial figure and interest ran high
in the charges and subsequent trial of McCall throughout Florida, but particu-
larly in the area around Lake County. Because of the intense interest in McCall
and the fact that he has been involved in numerous problems relating to law en-
forcement and his relationship with members of the minority race, it is felt that
any discussion concerning the I^IcCall case would not result in an objective an-
alysis of the problem but would rather be based upon the strong personal feeling
of the supporters of McCall in his long reign as Sheriff of Lake County. Believed
any discussion of the McCall case should be avoided as it would not lend itself to
an objective analysis.
One major case which is receiving a great amount of local and national publicity
is the indictment of six Vietnam Veterans Against the War members on antiriot
conspiracy charges. This case involves the indictment by a Federal grand jury on
July 13, 1972 at Tallahassee, Florida, of Scott Camil, John W. Kniflfin, William J.
Patterson, Peter P. Mahoney, Alton C. Foss, and Donald P. Perdue on above
charges in connection with plans for disruption and engaging in violent activities
at the Republican National Cc^nvention. The group is now publiclv known as the
'•Gainesville Six." The trial is set for October 10, 1972, at Gainesville, Florida.
During the Federal grand jury session four Vietnam Veterans Against the War
members including Robert Wayne Beverly, Jack Lee Jennings, John Victor Cham-
bers, and William Bruce Horton were given immunity to testify but refused to do
so and as a result were cited for contempt of court and incarcerated at Talla-
hassee, Florida. They are now referred to as the "Tallahassee Four" and were
recently released on bond as a result of a bail hearing ordered b}' U.S. Supreme
Court Justice William O. Douglas.
Believed since trial in above matter is pending and subjects are represented by
battery of "movement" attorneys, any comments whatsoever would be considered
prejudicial and immediately capitaUzed upon bj' the press.
GEORGI.\ (.VTLANTA)
Stimulated by public and press interest, in May, 1972, Georgia Governor
Jimmy Carter declared "war" on organized crime. A special Federal Grand
Jury, as well as a special Fulton County, Georgia, Grand Jurv, is presently
proi)ing "organized crime." Special intelligence squads supplemented financialh'
by LEAA grants have been formed to combat this problem.
Atlanta has very high homicide rate attributable to eas}' availabilitj' of guns.
Black Vice Mayor Jackson, Atlanta, has requested state legislation to control
possession of firearms.
Federal Grand Jur.y now sitting at Atlanta to hear testimony concerning
alleged inequities in decisions rendered by the Georgia Board of Pardons and
Parole.
Busing of school children continues to be of concern. Atlanta city schools operate
under majority tfi minority plan, approved by U. S. District Court, which allows
children at school in which they are in majority to transfer to school at which
they are a minority. Neighborhood schools appear to be preference of most parents.
Annual State Convention of the Peace Officers Association of Georgia, Jeykll
Island, Georgia, September 10-12, 1972. Association is composed of all types and
levels of peace officers in Georgia. Raymond Purvis, Deputy Sheriff, Bibb County
(Macon), is current President.
ILLINOIS (CHICAGO)
Organized crime particularly in Chicago remains a problem in spite of 312
convictions of organized crime figures fiscal year 1969 through 1971 and 176
organized crime figures currently pending prosecution. Gangland slayings are
tojjical in press particularly Southside Chicago.
Police corruption is extremely topical in press regarding Chicago Police Depart-
ment. FBI using Hobbs Act has indicted 17 Chicago police officers, convicted six
and investigation and grand jury resulted in 50 additional police officers suspended
for use of Fifth Amendment.
70
Chicago Alderman Fred Hubbard, alleged to have embezzled $100,000 of
Federal funded program for better emplo.yment opportunities for minority
groups in building trades, was recentlj^ arrested by FBI, Los Angeles, and returned
to Chicago to await trial.
Racetrack scandal involving ex- Governor Otto Kerner, presently on leave of
absence from position U. S. Judge, Appeals Court, Seventh Circuit, also allegedly
involves additional prominent Chicago-area people. Scandal involves alleged
preferential treatment for racing dates in return for racetrack stock at low price.
Internal Revenue Service is prosecuting for Income Tax Evasion and Hobbs Act.
Vicious and violent crime is extremelj^ topical in Chicago area press at this time
due to two triple slayings in Chicago suburban areas recentlj^ and one vicious
rape murder in downtown Lake Front Park area.
Gun control is extremely topical in press particularly in view of vicious crimes
set forth above. State of Illinois has individual firearms owner identification
registration which is extremely unpopular in Southern Illinois. Concealed weapons
are illegal in Illinois. Individual firearms are registered in Chicago. Gun homi-
cides in Chicago by youth under 20 are on increase, from 38 in 1965 to 271 in 1970,
an increase of 613 percent. Of 216 gun law convictions. Cook Count,y, Illinois,
as of August, 1972, onl.y 55 were given jail sentence and only 21 of those received
60 days or more. General opinion is that laws are adequate, but stricter enforce-
ment by courts is essential.
MASSACHUSETTS
Massachusetts Correctional Institutions
There currently exists a controversy concerning the Massachusetts Correctional
Institutions which hinges around the appointment of and the alleged liberal policies
of the current Massachusetts Correctional Institutions Commissioner John Boone.
During past several months there has been considerable unrest at several of the
penal institutions within the state including the recent deaths of two prison
employees, a convict and his wife who allegedly brought the convict a weapon
and/or ammunition when she visited him. A suit has been filed in state court in
an attempt to remove Boone alleging that he does not have the necessary qualifica-
tions required by state law to direct the s.ystem. In addition, several top career
prison officials have been removed, replaced, or resigned.
Boston Police Department
Edmund L. INIcNamara, after two five-year terms was not reappointed as
Commissioner of Police by ]\Iayor Kevin White and position is still vacant. A
recent state investigation allegedly indicates numerous Boston Police officers
including high officials, were paid sums of money by gambling element. There
has recently been a reassignment of key administrative personnel coincidental
with the disclosure of the alleged "pay offs." Mayor White publicly denies any
connection between above situations. This matter has and continues to receive
publicity and speculation as Federal and state investigation continues.
MICHIGAN
Substantive problem areas which might become an issue in the criminal justice
field are: (1) cross district busing; (2) Hud-housing frauds; (3) "stress" (stop
robberies enjoy safe streets). This is a decoy procedure used by the Detroit,
Michigan, Police Department in ghetto areas which has resulted in the killing
of 14 subjects by police. The majority of those killed have been black and there
have been law suits filed against the city in an effort to force a discontinuance of
this program; city officials and police have maintained this program has caused a
significant decrease in crime; (4) attacks on police, there is a continued increase
in the number of attacks on police, which is a big concern to city and state law
enforcement officials; (n) racial problems in police department, young black police
officers in the Detroit Police Department have formed a group called "Concerned
Police Officers for Equal Justice." There is constant feuding between white and
black officers in the Detroit Police Department, which has recently surfaced. An
incident has occurred where black officers jumped white officers who had a black
under arrest demanding their brother be released. Trial Board action is now being
held by Detroit Police officials against both black and white officers because of
internal dissension. The black officers group has made statement indicating they
would support their own black people against the police department if another
riot occurs.
71
Only event of any significance occurring in the immediate future in INIichigan
is the combined Michigan Bar Association and Judicial conference being held in
Detroit on September 22, 1972.
MISSOURI (KANSAS CITY)
Controversy has arisen over possible placement of maximum security prison in
Southeast Missouri as many authorities feel it should be located near urban areas,
where the large percentage of inmates originate, so their families may visit them
frequentlj%
NEW JERSEY
The most significant substantive issue in criminal justice field in New Jersej^ is
corruption among police and civic officials. Approximately 1 50 elected or appointed
officials in New Jersey have been charged with taking bribes or kickbacks. Con-
viction of Newark Mayor Hugh Addonizio for kickback scheme with major La
Cosa Nostra figure and conviction of Jersey City officials on similar scheme have
triggered allegations of score or more similar cases. Any of these could come to
fruition at any time and produce major scandal-type case.
Typical is recent indictment of former New Jersey Secretary of State Paul Sher-
win for requiring political contribution kickbacks from highway contractors. Cur-
rent New Jersey Attorney Genei-al George Kugler is imder fire for allegedh' not
taking action on learning of complaints against Sherwin.
Police protection of gambling operations widespread and appears to exist in
most major population areas of the state. Business and political forces in Atlantic
City are lobbjang for legalized casino-type gambUng and rely heavily on argument
that illegal gambling fosters police C(jrruption. Commissions probing New Jersey
racial outbreaks have commented on "pervasive feeling of corruption" as being
one of underlying causes of unrest.
Court backlog is also serious criminal justice problem in New Jersey. Newark
FBI has approximately eight hundred defendants awaiting trial and substantial
number of convicted defendants have not been sentenced due to workload in pre-
sentence reports by probation office.
One of the more pressing problems in metro area such as Newark is the abuse
of the trucking industry. Hijacking runs rampant in these geographical locations.
Although the offenders are repeaters in over fifty percent of the hijackings,
and the loads stolen amoimt to hundreds of thousands of dollars, these men
are released on bail after each offense. They are not pnjinptly brought to
trial and are free to hijack again and again, receiving minimal custodj' sentences
or probation.
NEW YORK CITY
Problem areas in the criminal justice field, New York area, include corruption,
which has been longstanding, within the New York City Police Department.
Officers have been arrested, being charged with [bribery, narcotics, etc., and in
addition, State police and New York City police officers have been arrested by the
Federal Bureau of Investigation in violation of the gambling laws and other
offenses, such as bank robbery. Newburg, New York, Police Department is sub-
ject of corruption.
A Commission known as the Knapp Commission conducted an extensive study
and held hearings which resulted in the arrest of numerous members of the New-
York City Police Department. One specific recommendation of the Knapp Com-
mission was the appointment of a special district attorney to look into and handle
corruption, which received the ajiproval of Commissioner Murphy. However, this
recommendation has not been entirely resolved to date.
At the i^resent time there are a total of eight vacancies on the Federal Bench
in the eastern and southern districts of New York, which without question creates
a problem in the backlog of prosecutive action.
OHIO
The only substantive issue apparent in criminal justice field in Northern Ohio
is Kent State University incident which occurred May 4, 1970. Although the
Justice Department has decided to convene no Federal grand jury in this matter,
the Kent State University affair is potentially a problem area and administration
officials appearing in this area could conceivably be questioned concerning this
matter.
72
The Ohio Association of Chiefs of Police will hold th<'ir annual conference
September 13 through 15, 1972, at the Sheraton-Da.vton Hotel, Daj'-ton, Ohio,
with approximatel.7 275 people estimated to attend. Annual meeting includes
installing new president, review of policies, and solving problems. Person to he
contacted concerning participation is Chief Pi-obert Woods, Moraine, Ohio, Police
Department, first vice president to be installed as president, telephone number
513-29S-7424.
PENNSYLVANIA
Pennsylvania policy for releasing criminals under a "furlough" plan has upset
certain courts and the public. Plan was approved by Governor Milton Shapp.
Yablonski murder trials of Albert Pass and William Prater to begin late Octo-
ber, 1972. Pennsylvania State Supreme Court hearing arguments on pre-trial
motions beginning September 25, 1972. Yablonski murder and resulting investi-
gation highlighted corruption in United Mine Workers.
FBI investigating FHA and real estate industry in Philadelphia. Several
persons have been indicted, including former director of FHA, for false statements
and payoffs.
Fraud Against the Government cases are under investigation in flood areas of
Wilkes-Barre, Pennsylvania. Cases involve alleged false statement to HUD and
alleged payoffs.
A special Grand Jur^- is investigating alleged police corruption in Philadelphia
at present time. Pennsylvania Crime Commission also having hearings re police
corruption.
SOUTH DAKOTA
Militant Indian groups on Pine P^idge and Rosebud reservations contend
favoritisni shown the non-Indian in criminal matters from the standpoint of
investigation and prosecution. They also contend pohtics controls law enforce-
ment within the Bureau of Indian Affairs (BIA).
TENNESSEE
In recent months there has been unfavorable publicity involving alleged irregu-
larities and misconduct on part of officers of Mem])his Police Department. A
number of different proposals have been made as to which branch of local govern-
ment should conduct investigation of police department. The latest development
is annoimcement by city council that a broad council-supervised investigation
will be conducted concerning Memphis Police Department. In addition, West
Tennessee Chapter of American Civil Liberties Union has also announced it will
conduct its own investigation of Memphis Police Department.
Of possible interest in criminal justice field is current controversy- regarding
vacancy on Tennessee Supreme Court. Following death on June 19, 1972, of one
of State Supreme Court Justices, Governor Winfield Dunn of Tennessee an-
nounced intention to aj^priint Thomas F. Turley, Jr., United States Attorney
for the Western District of Tennessee, to fill vacancy on State Supreme Court.
Robert L. Taylor, Jr., a ^Memphis attorney and former Appeals Court Judge,
taking ])osition that Tennessee constitution requires that this vacancy be filled
by voters, conducted a write-in campaign, receiving 3,301 votes to 555 received
by Turley, who declined to sponsor a write-in campaign. Following election,
Taylor announced intention to take seat on Supreme Court and a Chancellor
at Athens, Tennessee, administered the oath of office to him. Latest development
is deci-^ion by State Supreme Court restraining either Turley or Taylor from
filling this vacancy until matter settled by lower courts. Supreme Court suggested
that Governor in meantime appoint a temporary justice other than Taylor or
Turley. Governor Dunn has indicated he will make a temporarv appointment.
On July 22, 1972, Brushy Mountain State Prison at Petros, "Tennessee, was
ordered closed by Governor Winfield Dunn because of a wildcat strike by prison
guards. At the time, this was Tennessee's maximum security prison. All prisoners
were bused to the main prison at Nashville utilizing highway patrolmen as guards.
This action dealt a major economic blow to the town of Petros, and former
guards picketed the State Capitol for several days while the matter received state-
wide publicity. Subsequently, Governor Dunn has made statements that in time
Brushy Mountain Prison ma^- be reopened in some capacity.
73
TEXAS (SAN ANTONIO)
There are no problems of sufficient magnitude to be brought to the President's
or John Ehrlichman's attention in the criminal justice field. Of political signifi-
cance, hf)wever, there is some concern among some persons in the Chicano com-
munity whether or not the La Raza Unida Party should be formed. One side
feels that Chicanos should work within the present two-party system and not
for a third part3\
Senator Hart. Now, I am told that explanation has been made
that YOU, yourself, were not in Washington when this request came in,
or was made of the Bureau?
Mr. Gray. That is correct. Senator.
Senator Hart. But it Avas handled by an aide, Mr. Kinley?
\Ir. Gray. Yes; Mr. Kinley is sitting to my left. All he did was
route it over to the assistant director of the Crime Research Division.
Senator Hart. Who decided to send the reciuest out?
Mr. Gray. The assistant director of the Crime Research Division
in conjunction with his people. They told me, they reported to me
later on, you know — when I came back and found out about this and
things began to get a little hot arotmd there because of my unhappiness
with this — that they thought nothing of it at all.
It was a request that came from the WTiite House. It came to the
Deput}^ Attorney General, it came to us, and they handled it in the
regtilar manner.
Senator Hart. Until you returned and expressed your disapproval,
do I understand that no questions were raised by any of the officials
at the FBI about the Bureau being involved in this type of activity?
Mr. Gray. That is correct. Senator.
Senator, let me make one thing clear, if I may. I am giving you an
explanation of how this hai^pened but I am not ducking the
responsibility for what happened. I accept it. I am Acting Director
of the FBI and it is my resjionsibilit}'. Those errors are chargeable to
me and I am merely ex])laining in response to your cpiestion. I am not
ducking the res])onsibilit3^
Senator Hart. That reflects credit on the Naval Academy.
Mr. Gray. No, I just think
Senator Hart. A good captain's answer.
Mr. Gray. No; I am just thinking it reflects credit on America, sir.
Senator Hart. When did you find out about that?
Mr. Gray. It was a staff meeting on Tuesday, September 12;
5 p.m. on that afternoon. Mr. Ivinle}' and m}^ other yoimg staffers
came in and one of the things the^^ had to brief me on was this, and
I hit the overhead. That is when it all began to come ungiued there
as far as
Senator Hart. And at that time no one indicated to you that
there had been questions raised initiall}^ as to the propriety?
Mr. Gray. No, not at that time and not in the subsequent
investigation that I instituted, and in the memorandums that were
submitted to me, and the questions that I personalh" asked.
Senator Hart. All right. Now what, in fact, was involved in the
corrective action? As I understand it, the press did not report that
incident for several weeks after the correction had been made; am I
correct on that?
Mr. Gray. They didn't — mj^ recollection is that a report did not
come out about this foi quite a few weeks thereafter because, you
74
know, we didn't go around publicizing that I was steaming around
there raising a lot of cain and doing some things to make sure that
this kind of nonsense did not occur again.
Senator Hart. Wliat did you do to make sure that that kind of
nonsense did not happen?
ISIr. Gray. Well, one of the things I did — as a direct result of this,
and as a part of an overall management survey that I am continually
conducting, one of the surveys I mentioned earlier this morning in my
testimony — was that I wiped out the Crime Research Division, and
I transferred to nwself, to my office, my immediate office, Press
Relations and Congressional Relations.
Senator Hart. Did you discuss this incident at the time you first
learned of it, or subsequently, with anyone at tlie White House?
Mr. Gray. I did not.
Senator Hart, But you do feel that it is not an appropriate FBI
field of activity
Mr. Gray. It is improper. It should have gone to the U.S. attorney.
It had no business being sent to where it was sent: to the LEAA, or
Assistant Attorney General in charge of Criminal Division, or to the
FBI. It is one of those things that happen when papers are stacked up
in a basket and a guy wants to route them out in a hurry, and boom.
This one sat around for 7 days, sat around until almost the deadline
date for the report.
Senator Hart. My last topic bears on these dossiers. I believe that,
if not in j^our prepared testimony, at least in an exchange with Senator
Ervin, much of that ground has been covered. One thing, and I think
I indicated this to you when we were listing them before the hearing
Mr. Gray. Yes, sir; I remember.
Senator Hart. I would like to know — we are in agreement that the
maintenance of files, such as you discovered had been established and
were, in fact, in the Bureau without your knowledge for some time —
that the maintenance of that type of file is wrong?
Mr. Gray. Yes, sir; but that type of file only consisted of that
summar}^ memorandum, and we are talking about just one document —
that is all. I just want to make that real clear because it was only
one document derived from public source information, and from in-
formation in the FBI files at the field division level and at the FBI
headquarters level, so we are only talking about one document —
just one document, not a file. Every time a Senator or Congressman
writes to us about something — it may be legislation, it may be a
constituent problem, or it may be giving me the devil for something —
that goes in our files, you know, and we are not talking about that.
I am just talking about the summary memorandum that derived
from public source material and FBI files, Division files, and FBI
Headquarters files.
Senator Hart. You no longer maintain that file, that type file?
Mr. Gray. We do not develop any more of them, but we still have
those summary memorandums.
Senator Hart. That is my question. What do we do about those?
Mr. Gray. We still have the summary memorandums, and you
know, Senator, my first reaction was to burn ever}^ one of them, and
then I said to myself as we argued this, nobody will believe that I
burned them, or they ^\ill all want to stand there and read each one
as I burn them. Then I decided I could not do that anyhow because
75
that is contrary to the law. I have got to get permission from the
Archivist of the United States to destroy files. You have to go to the
Archives; and if you have a problem there, 3'ou have to go to GSA,
and it would be forever before I got these summar}- memorandums
destroyed. But if there were an eas}" way to destroy' these summary'
memorandums, I would do it because there is no need for them.
Senator Hart. The}' could be hurtful to a citizen?
Mr. Gray. They could if they got out in certain cases.
Senator Hart. Well, wouldn't the redtape and the difficult}' be
warranted as a means of insuring against that kind of hurt?
Air. Gray. Well, the Archi^dst is required to review material to be
destroyed, and I do not want people to read some of this rot that is
in those files, that is where the hurt comes in, and I am not going to,
as long as I am the guardian of those files, I am going to break my
back to protect those files because it is wrong to let some of that stuff
out. Somebody has got to read them. And once agam, you get the
question of who is gomg to do it. A lot of those
Senator Hart. How many such documents are we talking about?
Mr. Gray. I do not really know.
Senator Hart. We would have to know that before we made a
judgment about how difficult the destruction is going to be?
Mr. Gray. That is right. I do not realh' know, but we gave this a
lot of thought.
Senator Hart. Do I assume it would be too complicated?
Mr. Gray. Because we looked into what we would have to do going
through the cham, the writing of the letters, the justification, the
examination of the documents, j^ou know. I don't want anybod}'
examining those documents.
Senator Hart. We are all in agreement with that. We are trj^ing to
get rid of them.
Mr. Gray. That is right. That is right. If the United States
Senator Hart. You are the fellow who has them.
Mr. Gray (contmuing). If the Congress of the United States would
quickly enact a piece of legislation and sa}' that the Acting Director
of the Federal Bureau of Investigation is authorized to destroy these
summary memorandums, I would do it, and I will give 3'ou my word
I would do it.
Senator Hart. Mr. Chau"man, do you want to draft such a bill?
The Chairman. That is your job. [Laughter.] You are conducting
the investigation.
The Chair is going to be gone for about 10 minutes. Wlien you
finish, Senator Hart, we will hear from Senator Gurney and then
from Senator Kennedy.
Senator Hart (presiding). I will recognize Senator Gurney, but
before I do, since Mr. Kinle}' is here, is there an}- detail that you
would be in position to add, either with respect to the complication
in destroying the files or the decisions that were taken and discussions
that occurred in connection with the request for law and order speech
material?
Mr. Gray. Mr. Kinley reminds me that he has not been sworn,
Senator.
Senator Hart. I will make a bargain, if he will give us an answer
we won't swear him. [Laughter.]
76
Mr. Gray. David D. Kinley.
David Enley is my executive assistant. I neglected this morning
to introduce him.
TESTIMONY OF DAVID D. KINLEY, EXECUTIVE ASSISTANT TO THE
ACTING DIEECTOE OF THE FEDEEAL BUEEAU OF INVESTIGATION
Mr. Kinley. I have nothing to add to what Mr. Gray has stated
about the summary memorandums. I could only add a few brief
details about the episode surrounding the request for the criminal
justice information.
Senator Hart. Fine.
Mr. Kinley. The request, as we have since been able to recon-
struct it, came from the Wliite House and was sent to the Office of
the Deputy Attorney General, dated September 1. It had a deadhne
of September 7 for return of the information. As j-ou will see from the
copy of the niemorandum which was made available subsequently
by Mr. Ehiiichman, about the end of October, to the press, the
memorandum asked for criminal justice, or information on criminal
justice issues in about 14 States. The memorandum was forwarded
with a cover memorandum from the Office of the Deputy Attorney
General, requesting that the information be forwarded back to his
office as soon as possible because they were beyond the deadhne.
That memorandum reached my office on Friday, September 8,
late in the afternoon, and I immediatel}' routed it to the Office of the
Assistant Director in Charge of tlie then Crime Research Division.
On the afternoon of Monday, September 11, at 4:55 p.m., the
report came back, which we will also make available to the com-
mittee, of certain criminal justice issues in the 14 States that were of
interest to local law enforcement, and I approved that report and
forwarded it immediately to the Office of the Deputy Attorney
General.
The next da}^, or late that — I beheve it was late the next day,
Tuesdaj^, the 12th, another member of the staff brought to me a co]>y
of a teletype that had been sent to 21 field offices that quoted verbatim
the request from Mr. Ehrlichman's office and, at that point, Mr. Gray
had returned to the office, and that is when we went to the 5 o'clock
staff meeting on Tuesda}^ the 12th to report, to brief him on the entii'e
episode.
Senator Hart. I thank you for the information.
The Senator from Florida.
Senator Gurney. Thank 3'^ou, Mr. Chairman.
On that same point, had the White House inquired before, on pre-
vious occasions, for information about what is going on in the field in
the area of criminal activity?
]\Ir. Gray.Ycs, sir; I beheve they had because when I got into this
and began investigating it and reall}^ literally cross-examining some
of the i^eople involved, each of them told me that they saw nothing
unusual with tliis request, and they proceeded in the normal manner,
and they said to me the only thing the}" would have done differently
would have been to rephrase the language, instead of setting out the
White House memorandum verbatim in the FBI telet3^pe.
77
Senator Gurney. In other words, except for the particiihir time of
year, political activity was going on at that time, this would have been
a usual request of the FBI, and they would have answered in a usual
fashion as they did. Is that correct?
Mr. Gray. As far as the criminal justice items were concerned that
affected us in a given area, it would have been. The thing I took
umbrage at was reall}^ the full political context in wliich it was placed
b}^ sending that telet3^pe out with the White House memorandum in
there verbatim. If we had information in our field divisions regarding
criminal justice issues, which in fact we did, we merely had to ask for
it, you know. This is a service that has been provided.
Senator Gurney. Your anger was because a'ou did not want any
reflection on the FBI for participation in any political activity?
Mr. Gray. That is correct, sir.
Senator Gurney. A couple of items on this Segretti exchange of
information you discussed with Senator Hart. As I understand it, you
asked i\Ir. Dean, after the news articles appeared, if he had showed any
FBI memorandums to Mr. Segretti, and his answer was "No." Then
there were other questions about wlw you had not asked something
else.
My understanding of jour answer is that you posed the question
so, and the exchange between you and Mr. Dean was such, that had
there been any other facts and circumstances that Dean was aware
of regarding how the memorandum might have gotten into the lap of
Mr. Segretti, if in fact it had been shown to him. Dean would have
disclosed them. Is that right?
Mr. Gray. Certainly the facts and circumstances were such, be-
cause I was plenty irate over that telephone, Senator.
Senator Gurney. One other question on the Segretti business,
with regard to the investigation bv the FBI of any criminal activities
of Mr. Segretti, as opposed to his political activities. It is my under-
standing that the FBI onl}^ directed their investigation into any
possible criminal involvement in this Watergate business. As a matter
of fact, wouldn't it have been highh^ improper if the FBI had looked
into any so-called political activities? This is not within your orbit.
Mr. Gray. That is correct.
We would have been charged with doing something that was
certainly not within our jurisdiction to do, and this was one of the
reasons that after, even after I got the opinion from my own legal
counsel, I wanted to make sure I had another legal opinion that we
were right. I was always carrying in the back of ni}" mind from day 1
that this eventually had to become a celebrated case and the credi-
bility of the FBI as an institution was at stake, and this had to be as
perfect an investigation as we could make it. I did not want it tripped
up on any kind of technicalities.
Senator Gurney. One general question on the Watergate investi-
gation as such: Could you tell us how extensive it was, how many
agents were involved in this investigation and how long it took?
Mr. Gray. Yes, sir.
Senator Gurney. And, incidentall}^, I presume that the indictments
of the people who were indicted and tried were the result of evidence
uncovered by the FBI investigation. Is that true, at least partially?
91-331—73^
78
Mr. Gray. Yes, sir. It was our information that was being used by
the Assistant U.S. Attorneys conducting the grand jury which began
on the 23d of June 1972, 6 days after the offenses, alleged offenses at
the time were committed, and that was the date of the first witness
before the grand jury. But that was only a single witness, and then on
the 27th of June began the parade of witnesses as they marched by
with our evidence.
As far as the statistics are concerned, for the period June 17 to
December 31, 1972, field offices involved were 56, the legal attaches
involved were four, the leads covered were 2,670, the interviews
conducted were 2,321, the man-hours expended by agents were
21,658, by clerical personnel, 5,263, and this was performed by 343
agents.
Now we had an additional period of time involved in assisting the
U.S. attorneys, the assistant U.S. attorneys in trial preparation.
This is standard in our investigative work in order to fill in any holes
or to assist him as he goes along in his trial, in his preparation for
trial and in the trial, and the complete total as of January 31, 1973:
56 field offices were involved, four legal attaches' offices were involved,
2,698 leads were covered, 2,347 interviews were conducted, 22,403
agent man-hours were expended, 5,492 clerical hours expended.
Senator Gurnet. Is it fair to say that this was what would be
called a massive investigation? Would that be a fair way to put it?
Mr. Gray. Every experienced investigator in the Federal Bureau
of Investigation has told me, and I think that each of them would
testify under oath, that this investigation was conducted with the
full court press, it was a major special, it was conducted in accordance
■with the standard operating procedure of the Federal Bureau of
Investigation, and that the Acting Director put no limitations or
restrictions upon these agents.
Senator Gurney. I do want to commend you on your initial
opening statement as well as your answers. I think they have been
as full, frank and candid as any witness before this committee since
I have been on it.
One other thing is a matter of local importance because it involved
severe criticism of the FBI at the time. You may recall the incident
of the Southern Airways airplane that cavorted around the United
States and Cuba, and even Canada, before its final stop landed in
Orlando, Fla., my hometown. There some of the plane's tires were
either shot or attempted to be shot, and it had to come to a belly
landing in Havana when it finally came down. The FBI was criticized
for this, and I do not really tliink the true story has ever come out.
Would you mind spending a few minutes describing that incident?
Mr. Gray. Senator Gurney, I would be happy to.
I was in Connecticut at my home Friday evening late when I
received the first telephone call of the hijacking from my command
center headquarters in Washington. I received several more telephone
calls throughout that evening. Those were all informative calls in
nature, requiring no decision on my part at that time.
Then, in the early morning hours, telephone calls picked up again
and through the day I stayed in contact going right on down into the
evening. In the evening the reports began to come in to the effect
that our personnel were in touch, as we are on this circuit, with the
airways ofl&cials. Southern Airways officials. We always are in touch
79
with the airline company, with the Federal Aviation Administration,
with our own command post, we are all linked there together and
also with the White House Situation Room.
But the information began to come in toward the end of the after-
noon that this thing was reaching a very severe stress situation, not
only from the standpoint of equipment, but from personnel fatigue,
and further that the oil condition in the engines was becoming rather
severe, and, in fact, the pilot himself, in landing at Key West, stated
over the circuit that he would have to have oil or the engines could
not continue to function.
Just shorth^ before S p.m., Southern Airways, with whom we were in
constant contact, stated that it was their recommendation that that
flight not be permitted to leave Orlando, that it would seriously
jeopardize the lives of all on board because of the conditions I have
previously enumerated.
I can recall after getting that call having about 20 minutes. I sat
down and wTote out the pros and cons. I knew what the risks were. I
knew that our people had earlier in the day at Knoxville practiced an
assault on a similar type aircraft on the ground because I knew that if
we disabled that aircraft we had to be prepared immediately to go in
and get the people.
We also knew, another factor, that these men who had hijacked the
aircraft wanted to go either to Africa or to Switzerland and were asking
for charts, and we knew that the aircraft could not go there.
So I made the decision at 8 o'clock, and I called my command
center and I told them to mark the time, it was 8 o'clock, "I am order-
ing that the tires be shot out of this aircraft." This was the recom-
mended— a recommended — procedure, one that had been checked into
with the FAA, checked with airlines, and all said, "'Shoot the tires
out, and you disable the aircraft." There are other ways, we could have
sprayed CO2 into the engines, but these particular hijackers were
awfully jumpy and would make that pilot take off even if the\^ saw
people out on the ends of the runways there, anywhere near it; they
were very jumpy and would let no one approach that plane.
The pilot was not a free agent. There was no way in the world of
getting to him. Wlien my special agent in charge, leading the special
agents, got under the aircraft while it was immobile and stationary at
Orlando, went to the fuel truck that was over there, parked some 50
feet away from the aircraft, in fact, aft of the starboard beam of the
aircraft, to see if there were any headphones he could plug in to tell the
pilot, there were no headphones, and he came back and began to shoot
out the tires. They did shoot them out.
The aircraft, as they were startmg to put their fingers on the button
to open the doors to assault the aircraft, that plane took off at full
throttle and went down the runway. Now no one thought that plane
would ever get off the ground. Apparently, in hindsight, it was loaded
lightly enough so that it generated its own air cushion and was able
to get off the ground.
Smce then — well, durmg the immediate period followmg that,
when I took the full responsibility which, of course, is mine — I had
a call from a United Airlmes pilot who said to me, ''You are taking a
lot of heat, but if I am ever in the same situation, come and get
me."
80
I got a letter from a passenger on the plane Avho related that,
prior to the shooting out of the tires, the attitude of the hijackers
had been dictatorial, domineering, arrogant. After the shooting out
of the tires, all they wanted to do was land the airplane and get back
to Cuba where they previously had been and had decided Cuba
was not for them, and 3^et they knew they had to get on the ground
and their attitude changed completely, this passenger said.
I just rode up yesterday — on Monda}^ — came back from Florida
with a National Airlines captain Avho, when we ended the flight,
came back to talk to me, to sa}^, "I know you have gotten a lot of
heat on the Southern Airways situation but if I am in that situation,
come and get me. You have my confidence."
This is a rough sequence of the events. Senator Gurney. These
were the reasons wh}' we did what we did. We were trained to do it.
We had taken every possible step to ready ourselves to do this.
In fact, our training program with the airlines companies has been
extensive. We have ^^•orked ver}^, very closely with aircraft crews
and we have helped to train them as to how to react to this type of
situation.
Senator Gurxey. I appreciate that. I asked the cpiestion because
I think a lot of people got the idea the tires were shot out after the
plane was in the air and airborne.
Mt. Gray. No, sir, it was stationary — not mobile at all.
Senator Gurney. I do not have any other questions, Mr. Chairman.
Senator Hart. Senator Kennedy.
Senator Kennedy. Mr. Gray, I apologize for not being here earlier
this morning. I was necessarily absent. I missed your opening state-
ment and some of the questions.
Of the questions I have, some have been covered. I would like
to yield, Mr. Chairman, and reserve my right to come back either
this afternoon, or the first thing in the morning.
I want to welcome you here and congratulate 3'ou.
Mr. Gray. Thank you, Senator.
Senator Hart. Senator Thurmond.
Senator Thurmond. Thank 3^ou very much.
Mr. Gray, I wish to congratulate you upon having been nominated'
as Director of the FBI. I have been looking into 3'our record in the
various points that have been alleged against you, and it gives me-
pleasure to sa}^ I intend wholeheartedl}'^ to support you. I have been
impressed not onl}^ with j^our education, a graduate of the U.S.
Naval Academy — one of the finest educational institutions in the
country — graduate of law with honors at George Washington Univer-
sit}^, but I also have been impressed with your administrative ex-
perience. I believe 3^ou served as military assistant to the Chairman
of Joint Chiefs of Stafl^, did you not?
Mr. Gray. Yes, sir.
Senator Thurmond. I believe you served as special assistant to
the Secretar}^ of Defense?
Mr. Gray. Yes, sir; I did.
Senator Thurmond. I believe after that 3^ou practiced law for 8
years in Connecticut?
Mr. Gray. Yes, sir; I practiced from January
Senator Thurmond. And jou served as executive assistant to the
Secretary of HEW?
Mr. Gray. Yes, sir.
81
Senator Thurmond. Special consultant to the President's Cabinet
Committee on Education?
Mr. Gray. Yes, sir.
Senator Thurmond. And Assistant Attorney General.
I have made inquiry about your reputation and your record and
I have received only good reports.
I think throughout that })eriod of time if there would have been
anything against you it would have come forward. You served in
so many capacities here with the Government, somebod}^ would
have come forward with something against your character or reputa-
tion if you were not above reproach, which I think, of course, you
should be. Public office is a public trust and you have onl}^ the people
to serve, that is your duty.
I might say that I was impressed with the interview jon had in
Nation's Business when the Ciuestion was asked what you would do
if politicians reached for the reins of power with the FBI. I believe
you made this statement and I want to ask you if that is correct.
"I would resist them ^^'ith every bit of ability I have. I may have
to sit down face to face for a full discussion with any politicians who
may seek to run the FBI."
Did you make that statement?
Mr. Gray. I did, sir.
Senator Thurmond. Have you stood by that statement?
Mr. Gray. Yes, sir.
Senator Thurmond. Do you intend to stand b,y it in the future?
Mr. Grey. I do. '
Senator Thurmond. Have you allowed anv politics to enter into
the FBI?
Mr. Gray. No, sir.
Senator Thurmond. Do you intend to keep politics out of the FBI?
Mr. Gray. I do, ^Senator.
Senator Thurmond. Do you intend to perform your duties in a
nonpartisan manner without regard to party so far as investigative
powers of the FBI go and the other performance of your duties while
Director?
Mr. Gray. Yes, sir. As I said this morning in my opening statement,
if I find I cannot do that I will resign and go back to my beloved law
firm in southeastern Connecticut.
Senator Thurmond. I was impressed with another statement that
you made, and I want to ask a^ou if you made this statement in the
words that I have it quoted here:
"The liberties the founders of this countrj^ fought so hard to attain
are too precious to alloAv them to be lost in this time of turmoil. The
challenge will be met. I know that the people of our Nation have the
courage and dedication to face this challenge and resolve to continue
to develop and enhance the greatest form of government ever devised
by the mind of men."
Are those your words?
Mr. Gray. They sound like mme from one of my speeches. I can't
really remember it, Senator, but they sound like my words.
Senator Thurmond. I believe the}' appeared in the Congressional
Record.
Mr. Gray. From my speech?
82
Senator Thurmond. A staff member excerpted it from the Con-
gressional Kecord.
Mr. Gray. It sounds like
Senator Thurmond. Do 3^ou approve of those words?
Mr. Gray. Oh, I do indeed. [Laughter. 1
Senator Thurmond. Now, I want to ask you about this: I don't
know what will be attempted to be brought out about you but unless
something comes out that I can't foresee I intend to give you my full
support because I think 3'ou are an honest man, I think j^ou are a man
of character, a man of integrity, you are a man of ability and dedica-
tion and I think you are the type of man we need in government.
I would like to ask you if 3'ou have done anything in connection with
the Watergate affair to hamper the investigation, to try to obscure any
facts and information from coming to light, or have you done every-
thing 3^ou could to disclose the facts as thev have come to the attention
of the FBI?
Mr. Gray. I would say. Senator Thurmond, we have done every-
thing that we could possibly do, and we have given it the, as I have
said time and again, the full court investigation of the FBI, conducted
it in the standard manner of FBI investigations, treated it as a major
special, and I think my senior investigators, if called here to testify,
would state that the Acting Director put no restrictions or limitations
upon this investigation.
Senator Thurmond. Are you willing to make your records available
to the chairman of this committee for his perusal and inspection in
connection with the Watergate investigation or any other matter
with which you have dealt since you have been Acting Director of the
FBI?
Mr. Gray. Yes, sir, I am, and, if I ma^^, Senator Thurmond, I
would just like to say a few more words on just this point that you are
raising.
We, of course, are a part of the Department of Justice. This Com-
mittee on the Judiciary is the committee that has cognizance of the
Department of Justice, and if we in the FBI have any committee of
Congress
Senator Thurmond. Speak a little bit louder.
Mr. Gray. If we in the FBI have any committee of Congress to
which we should report, it is this committee. I would be very happy
to work with this committee. I do not have any hangups about giving
information to U.S. Senators. I believe that they are fairminded
men, that they are decent men, that they are honorable men, they
have the country's best interests at heart. For too long has the FBI
been criticized for not having an oversight committee, yet, Mr.
Hoover made every effort to inform the Congress, and I will make ad-
ditional efforts, and I look to this committee as the committee that
should look at the FBI. I would intend to work with this committee,
as I have alread}' done, and ^^dth the House Judiciary Committee,
and in working particularly ^^^th Congressman Edwards' Subcom-
mittee No. 4, I think it is, with regard to identification problems,
national crime information center problems, computerized criminal
history problems, we have met with them, we have brought them to
the identification division, and we are opening for their information,
judgment, and decision the information that they feel they need.
83
We don't realh^ — we feel perhaps we have a committee here in the
Senate Appropriations Committee but that affects only dollars. They
get into a lot of other things, too, but we have to have some com-
mitte here in the IJ.S. Senate that we can look to as being our com-
mittee, and as we have thought about this what committee is more
natural than the Committee on the Judiciary.
Some people have said to me, "Why don't you go up to the Senate
and ask for a joint House-Senate committee, an oversight committee
of the type that you have for the CIA," and I have said, "I think
that our committee is Judiciary but that is not a decision for me to
make. That is a decision for the U.S. Senate to make."
I wanted to give you my personal views, Senator Thurmond, on the
cpiestion that you raised.
Senator Thurmond. You stated you are willhig to turn over any
records in connection with the W^atergate investigation.
Are you also willing to make available to this committee any of the
FBI agents who worked upon this investigation if the committee so
desires to call them as a witness or to receive any information from
them?
Mr. Gray. Yes, sir.
Senator Thurmond. Have you by deed or act done anything to in
any way stifle or discourage the Watergate investigation?
Mr. Gray. ]\'o, sir; quite to the contrary. Even in the first week, on
Saturday morning, June 24, I called in all of those agents from tlie
Washington fiekl office, including the assistant special agent in
charge and the special agent in charge, and lectured them rather
severely about the leaks and then once again exhorted them to give
this the full measure of their investigative ability, go at it with no
holds barred and investigate to the hilt.
Senator Thurmond. Would you, as Director of the FBI, feel that
it is your duty to get at the truth in any investigation, not just the
Watergate but an}^ investigation, that comes before the FBI regardless
of who it helps or who it hurts?
Mr. Gray. Yes, sir. That is my duty.
Senator Thurmond. That is all, Mr. Chairman. Thank you.
Thank you, Mr. Gray.
Mr. Gray. Thank you, Senator Thurmond.
Senator Hart. Senator Bayh.
Senator Bayh. Thank you, Mr. Chairman.
Mr. Gray.
Mr. Gray. Yes, sir.
Senator Bayh. I appreciate this chance to visit with 3^ou formally,
although frankly not as much as I did in visiting with you informally
the other day.
Mr. Gray. Thank you, Senator Bayh.
Senator Bayh. Having the duty to sit in one of the seats with my
colleagues and explore with some great degree of particularity the
cjualifications of those who come before us, there have been some
things in the past which frankly I did not relish and I have to say
there are a lot of things I would rather be doing than sitting here and
interrogating you, sir. I have been impressed every time I have had
a chance to meet you; first, in your post down at Justice.
84
111 the visit we had the other day in my office, I was impressed with
your openness and with your frankness and your honesty. In our
personal conversation the other day, I expressed, and I will express
it here, the concern I have for the FBI. It is important in our
system of jurisprudence that its impartiality be protected and main-
tained, and its credibility and that of its agents as well as of its
Director be as nearly as possible bej^ond dispute. I expressed that
concern to you.
Mr. Gray. Yes, sir.
Senator Bayh. And I think you concurred in it.
Mr. Gray. Yes, sir, I do.
Senator Bayh. The questions that I want to direct to you will
be directed with this in mind.
I think I frankly said to you ^vithout at all intending: any personal
rebuke or admonishment tliat I would have much preferred to have
had someone come before us who was a professional law-enforcement
officer, one who did not have your political background.
Mr. Gray. I agreed with you in your ha\dng to ask those tough
questions.
Senator Bayh. The appearance of impartiality and propriety is
oftentimes almost as important as impartiality and projiriety them-
selves in establishing and maintaining public confidence. That is wlw I
think some of these questions need to be asked. They have been asked
b}' others, they have been raised elsewhere.
I ask these questions for two reasons: One, to get the facts on the
record, if thej^^ have not alread}" been given, and second, and perhaps
even more important, to lay to rest some of the concern which has
been raised by these questions and perhaps thus to enhance your
credibility and your capability to serve if you are given confirmation
by the Senate.
In this context I would like to direct your attention to some aspects
of your political background.
t believe that a political background is admirable, I have been
involved in one for 18 years, but perhaps not for the FBI. Is it pos-
sible that some of the things that you have done, advertently or
inadvertently, while you have been the Acting Director, might have
political consequences which would raise doubts about your assess-
ment of how you make the judgment, that you and I agree needs to
be made, to keep the FBI out of the political cauldron?
The speeches that have been discussed here a bit are a matter of
some particular concern. Let me just throw at you some of these
quotes directly from 3'our speeches and give you a chance to comment
on them, give your thoughts further or say you don't think it is
appropriate or whatever you like.
In Spokane
Mr. Gray. Spokane, Wash.?
Senator Bayh. On August 7. You came out strongly advocating
the elimination of the exclusionary rule as to legally seized evidence
at a time when this case involving this particular question was before
the Supreme Court, in the case of California v. Crivda. Now. is that
kind of a position, the Dhector being an advocate in a sensitive area
in the judiciary process, is that a wise procedure, do you feel?
Mr. Gray. 1 feel in that particular case, and not knowing that the
California decision was pending, that this ^^•as not a wise thing for
85
me to say and it was certainly something that I would not have done
had I known that that decision was pending. Indeed, as a matter of
fact, even as Assistant Attorney General in the Civil Division, the
young lawyers down there will tell you, I felt that the abolition of the
exclusionary rule was really not a thing to be done, and I worked at
it very hard with the task force and was gradually convinced that
it had merit. But my initial opposition to it was very strong and I
set up a task force of young lawyers down there in the Civil Division
to really go into that exclusionary rule.
Senator Bayh. As the Assistant Attornej^ General, ^^-ouldn't you
have had the oj^portunity to know about the progress of this par-
ticular issue through the courts? Unless you had been fairly well
advised that
Mr. Gray. Let me say to you, Senator Baj-^h, I didn't — it is my
fault.
Senator Bayh. I am not arguing the merits of the rule, you
understand.
Mr. Gray. No; it is my fault for not knowing that that case was
pending. I was open to be shot at, and I have been shot at.
Senator Bayh. Is it fair to suggest — we can't do anything about
what happened yesterday and, as I told you, and as I still feel, I have
not made up my mind, I think you are a right guy and I am trj'ing
to determine what weight to give these aspects that I direct your
attention to, but if you are confirmed, I hope we can put a record
together that might avoid some of the pitfalls that some of us are
concerned about.
Is it fair to say that in the future you would take greater care in
avoiding this kind of statement whicli might be interpreted by some
as affecting the outcome of a High Court case?
Mr. Gray. Certainly, I am going to do that, and certainly I am
not going to be speaking as much as I have been speaking in the
months that have passed. But, as I stated in my opening statement
this morning, there was a very good reason for that, because I felt
that the windows and the doors had to be opened and w'e had to begin
talking more w'ith people; but I don't anticipate it is going to be
necessary for me to make as man}^ speeches as I made. There are
some 41 of them, I guess, between May and the time, November 19,
when I was hospitalized. I made those for a very good reason, to try
to bring to the people the FBI as it really was, and, quite frankly, I
felt the dedicated men and women of the FBI had been maligned too
long, and a part of it was due to us, as I said in my opening statement
this morning.
Senator Bayh. I thought your opening statement was a very force-
ful statement, and indeed let me say, frankly, if your speeches in the
field had been confined to the duties of the FBI and the importance
of fighting crime, the tools you might need to do so, I would not be
concerned. But wdien I read, from a Butte, ^lont., speech, on Sep-
tember 7, the following quotation: "There are those who claim that
national priorities are distorted away from the individual," and then
you go on to say that, "There have been annual increases in Feder^al
outlays for supporting, developing human resources. In the current
fiscal year, 45 percent of the Federal budget is for human resources
and only 32 percent for national defense, but calamity howlers who
86
say the little man is forgotten, do not talk about it," that really does
not sound like a law enforcement speech. That sounds like the Direc-
tor of the Ofhce of Management and Budget preparing a press release
for the President.
]\Ir. Gray. No, I would have to respectfully disagree with the dis-
tinguished Senator from Indiana. Because that might be tied in again
with my very strong belief in our country'-. I have felt very keenly
that too long have scorn and ashes been heaped on the head of America,
and for once I had a forum, if somebody would listen, forme at least to
talk for America, and the thrust of these speeches, Senator Bayh, is
for America. I think you have got to read these in the full context,
not just pick out facts that I am using to demonstrate that America
has not slid so far downhill.
As I said this morning, I believe in this great and good land of ours
and the good peoi)le \\"ho have made it the land that it is. So it really
isn't fair, I submit to you, Senator Baj^i, to pick these quotations out
because my intent ^^■as to portray America, not to carry the country
for Richard Nixon. I have got to persuade people to believe that.
That is my task, and if I fail, the Senate will not advise and consent ;
it is that simple.
Senator Bayh. Did you ever hear of a political speech that was not
pro- American?
Mr. Gray. We can turn that question around, and we are plotting
to get on that line. I told you I was not making political speeches,
and I mean it.
Senator Bayh. These speeches were not just made at an American
Legion hall or a high school graduation or a bar association meeting.
They were made in close proximit}' to a national election in which
one of the ke}' issues involved was priorities, whether we are spending
too much money on defense and not enough money on domestic prob-
lems. Now, A'ou were avrare that this was one of the kc}' issues joined
in this election?
Mr. Gray. Yes, no question about it.
Senator Bayh. And here your statement was right on target.
Mr. Gray. That was one of the statements in that speech that was
right on that target. I will say that you can draw that conclusion, as
I said this morning, but I also said this morning, Senator Bayh, that
there was no intent to make a political speech, no intent to write a
]3olitical speech, and I don't think that anybody who ever heard me
speak thought I was making a i)olitical speech.
Senator Bayh. Well, i)erhaps it is possible that the first part of that
statement is accurate, and yet the latter part is not.
We had a good deal of discussion this morning about this Cleveland
City club speech. We have to take into consideration not only A'our
whole speech but the whole political campaign that was going on,
Mr. Gray. That is correct.
Senator Bayh. You are aware that one of the major strategies of
the administration was to send out high surrogates to carry the Presi-
dent's message?
«Mr. Gray. I am aware of that, 3'es, but I was not a high surrogate.
Nobody designated me one, and I was not self-anointed. Senator
Bayh, believe me.
wSenator Bayh. Well, I am \\illing to accept your assessment that
you were not a high surrogate, but when I read parts of your Cleveland
87
speech — and I would like, Mr. Chairman, to put it all in the record
so that anybody who reads this will not take it out of context.
Senator Hart. Without objection.
(The address referred to appears on page 23.)
Senator Bayh. "In our countr}^ todaj*, there are strident voices
proclaiming that the same conditions exist in our land. We are told
that America is *sick' and that law is used to repress freedom."
Run down the same page: "We are on the threshold of the greatest
growth pattern in our history — growth in the qualit}" of life for all
our citizens — growth in our total effort to eradicate the imperfections
in human society."
Then it goes on: "more employment, more medicines, more tech-
nology, more material accomplishments." It is a ver}' strong assess-
ment of our strength, and then \\hen I compare the phraseology there
with the phraseology of the President's acceptance speech, which I
would also ask to be put in the record, the tone is almost identical,
and that is wh}' I question the feeling that you had that this was
purely patriotism. Here the President sa^s: "It has become fashionable
in recent years to point out what is wrong with what is called the
American system. The critics contend it is so unfair, so corrupt, so
unjust we should tear it down and set up something else in its place. We
have more freedom, more opi)ortunity, more prosperity than any
people in the world. For the first time in 5 years" — and there is even
the reference to crime ^\'hich you point out in the back part of your
speech in Cleveland — "This is the first time we have only had 1-per-
cent increase in crime."
With 3 our being there as the head of the FBI, in an election year,
reciting those statistics, which you thought were nonpolitical, I think
probably to a lot of your audience they had a very strong political
ring.
Mr. Gray. Well
Senator Bayh. Even if ^'ou didn't intend for them to do it.
Mr. Gray. Well, Senator, you have jour belief, and 1 have mine.
I didn't have that belief, and I still don't have that belief.
Senator Bayh. Did you forward am- of these speeches to the
White House, or anything like that?
Mr. Gray. No, sir. I wrote a lot of these speeches myself, and the
men who do the speechwriting in the Federal Bureau of Investiga-
tion— at least who did it — would say that we worked over everj^ one
of them very, very carefulh', and usually — in the last analysis — the
final draft was mme.
Senator Bayh. You were concerned enough, and I salute 3'ou for
this. As 1 recall this morning, you told one of those who preceded me
that you checked this out and that agents in the field, or somebody
who did the checkmg, came back with a feeling this was not a political
forum and there would be no political ramifications or something?
Mr. Gray. That is right. 1 have ahvays been concerned— you
know, it has alwaj^s been perfectly obvious to me — that from the
date the President and I met on Alay 3 at the Wliite House, I am
going to get tagged with this. You know, 1 have got some smarts —
maj^be not a lot — but I can read that message very clear.
Senator Bayh. I think you have a lot, and I think maybe
Mr. Gray. So 1 have got to govern mvself accordinglv if 1 want to
88
continue to serve in this position with these dedicated men and
women and work with the two great pohtical parties in America. 1 am
not a partisan guy and never have been. 1 ahnost became a Democrat
when I left the Navy in 1960, because my whole family are Demo-
crats. I even went to see Chester Bowles as to whether I would serve
Richard Nixon or John Kennedy, so I am not a partisan guy, and
this is a part of my credibility, my reputation for truth.
Senator Bayh. But you did check out the City Club to see there
would be no political ramifications?
Mr. Gray. Yes, we did.
Senator Bayh. Who did the checking for you, Mr. Gray?
Mr. Gray. 1 asked my Crime Research Division to look at the
record, and 1 found out that, in the record since 1968, that the club
had been trymg to get the Dnector to go there and talk, and that the
recommendation of the staff of the FBI was that it would be a good
forum for us to carry the FBI message.
Senator Bayh. In making your deter)nination of the political im-
pact or lack of political impact that 3"ou would have in this forum,
were you advised by those who had checked it out, and thus did you
have the information that the Democratic presidential candidate^
Senator McGovern, also appeared in that forum?
Mr. Gray. No; I did not have that information. I was not concerned
about it.
Senator Bayh. Were you apprised that Sargent Shriver M'as to fol-
low you the week following in that same forum?
Mr, Gray. You see I didn't look at it, Senator Bayh.
Senator Bayh. You see that is what concerns me. You have two
gu3's on the other side and you have Pat Gray giving a good old-
fashioned American anticrime speech and arriving in a White House
jet and you may have been just as innocent as the driven snow, and
I am willing to take you at face value, but that certainly would give
the impression to the peojile at the Cit\' Club 3'ou were carrying a mes-
sage from the President of the United States.
Mr. Gray. No; I don't think so. Senator Bayh. I put in the record
this morning a memorandum that was written by the Crime Research
Division people regarding this because I wanted to know. I wanted
to know — I was not tr^dng to carr}' the i)olitical cudgels for anj^one —
and I said this morning when I came into this position, I viewed it as a
return to the service of my country, and I still do and I always will so
long as I am privileged to serve in this position.
The Chairman (presiding). We will recess now; there is a rollcall
vote.
About how much longer do a^ou have?
Senator Bayh. About 10 or 15 minutes.
The Chairman. We will come back.
(Short recess.)
The Chairman. Proceed.
Senator Bayh. Mr. Graj?-, let me ask one last question about the
speeches in relation to the campaign.
Mr. Gray. Yes, sir.
Senator Bayh. You ])oiiit out that the FBI Director had been in-
vited since 1968, which would assume that if the invitation was
turned down a month or two before the election it probably w^ould have
been forthcoming for 1972.
89
Now in looking to the future, is it fair to suggest that a reasonable
man, who happens to be the FBI Director, given the intensit}- of the
campaign, given the fact that the White House had by specific request
asked for an appearance because they thought it would be pohtically
valuable, might find that sufficient to warrant a future FBI Director
to conclude that maybe that is one that he had better pass up in the
years ahead?
Mr. Gray. Senator, what you say is correct and certainly has merit,
but that Wliite House memo went to 20-some-odd other people, and
I didn't attach an}^ weight to that. I didn't go up there because of the
Wliite House memo. I accepted the speech in earl}' June, and I went
out there because this was a very prominent club, and, as I said this
morning, in the memorandums that I am going to insert in the record,
you will find that this says this was a liberal group, and I want to
talk to people.
I said this morning in my speech that I believe in personal dialog,
and I believe this was a good forum to take the FBI's message and
try to talk about the FBI and try to let the people see the Acting
Director of the FBI.
But I agree with you certainly that I don't expect that I am going
to be speaking anywhere near as much in the future because I have
opened a Avindow, I have carried the message to the American people
regarding the FBI.
Senator Bayh. I don't want to pursue this further, but I would like
to put in the record a memorandum from ]\Ir. Patrick O'Donnell to
the Honorable Patrick Gray. Now, he may have sent it to 25 or 30
other people, but this one is only earmarked to you, and it makes a
rather strong pitch about the ])restigious meeting place, and points
out that both Secretaries Hodgson and Sliultz as well as Ambassador
Bush have been there and Jim Lynn is quite familiar with the club.
I just hope in the future that perhaps when this White House, which
is said to be the ultimate in political acumen, assesses a speech to be of
political value to them, maybe someone who is not involved in politics,
the FBI, will take their word for it and sa}^, "No thanks, I will do that
next year."
Mr. Gray. Well, sir, when I got the memorandum. Senator Bayh,
I checked — that is why I got the other memorandum that we are
going to put in the record from my own Crime Research Division —
just to make certain I was not getting m3^self into a situation where
I could be really convicted of engaging in a political act. I know I am
being accused and it is right to accuse me, and I don't differ with that
because you have to bear this responsibility and I accept that. But I
don't think in the future you have to be gravely concerned,
because in the future I am not going to make as many speeches.
Senator Bayh. I am not trying to convict anybody, but I feel that
under the cu'ciimstances it was just not a good place to go. To suggest
that it was a liberal forum, I supjiose if I were supporting the President
as a conservative, I would be looking for liberal votes, so that does not
make a very good rebuttal.
Mr. Gray. Well, that is true. I don't match with you in the political
area. I don't have that much expertise.
Senator Bayh. We are trying to be out of a political area. I just
want to lay that out so if the time comes again to make that decision,
you might say, "I remember."
90
i\fr. Gray. I get the message.
Senator Bayh. I am not suggesting that you take my view as
being
Mr. Gray. I think your point is well taken, and I am trying to
give you my reactions to it, but your point is well taken,
vSenator Bayh. I appreciate that.
Let me deal with one last area here.
]\rr. Chairman, I have a number of cpiestions, but I think because
the hour is late, I would rather pass after I get through this one area.
The Chairman. You told me 10 minutes. [Laughter.]
Senator Bayh. That is just about what I have, ^Ir. Chairman,
10 minutes.
I am concerned, Mr. Gray, about your interpretation of the role
of the FBI Director as far as to whom you are ultimately responsible.
It is sort of a strange breed of cat, isn't it, where you are responsible
to the whole country, to the Commander-in-Chief, to the Congress,
to each individual citizen.
Mr. Gray. It is a tough job.
Senator Bayh. Yes, it surely is.
You have been described, accurately, I suppose, and I think it is a
virtue, as being a strong team player, a loyal team man. I have here a
speech that you made at HEW which really told those assistants
down there the great responsibility they had to be loyal to the Presi-
dent. Of course, circumstances have changed now. I think being a
strong team player is a valuable asset when you are an Assistant to
the Secretary or when you are an Assistant Attorney General.
Now, I would like to get your judgment as to who you feel is the
captain of the team as far as the Director of the Federal Bureau of
Investigation is concerned, to whom does loyalty flow from the FBI
Director?
j\[r. Gray. That is a tough question.
First, we are a creature of the Congress, and the Congress has seen
fit to place us in the executive branch. The head of the executive
branch is the President of the United States. We are also the investi-
gative arm of the Department of Justice. We report to the Depart-
ment of Justice. We are to follow the mandate, the dictates, and the
rules and the regulations of the Department of Justice. Then, in the
last analysis, the individual has his own conscience, and, as I said this
morning, if at any time these conflict so that I cannot pursue my
duties in an ethical manner in accordance with the Constitution and
the statutes of the United States enacted by the Congress, I will
resign and go back to my beloved law firm.
I "would iike to add I am looking for a cop3^ of that speech I made
at HEW. I did make it, but I want to point out the last paragraph
of that speech in which I say, "We are the servants of the American
people."
I would like to make special note of that for the record, that the
last paragraph tells there whom I believe we are servmg, the last
paragraph of that speech.
Senator Bayh. Shall we put the whole speech in?
Mr. Gray. I would hke to put in the whole thing.
Senator Bayh. I was using it as part of the aspect
91
Mr. Gray. No, the wliole tiling is going to come back, let's put
it in. Let the whole thing hang out.
(Mr. Gray subsequently submitted the following document for the
record :)
Address by L. Patrick Gray III, Executive Assistant to the Secretary,
Department of Health, Education, and Welfare, to All Appointees in
THE Department at the Deputy Assistant Secretary Level and Below,
July 25, 1969
I am going to talk to you a])out some lessons learned in the first six months'
The approach will be practical, but threaded throughout will be the lofty ideal-^
and the great concerns we have as we join together in HEW to serve the President?
the Secretary and the people of our Nation.
At the risk of being tagged here and now as an over 30, "turned off" reactionary,
let me emphasize to you the importance of the concept that we are here to serve,
not to be served — that we are here to serve, not to enhance our own perfectly
normal, human selfish interests. This may be out of tune with some of the thinking
surrounding us today.
Each of us is possessed of our own desires, ambitions and goals. This is normal.
This is commendable. At the same time, when we embark upon a career in the
service of our government, whether that career is to be short term or long term,
we must be quite willing to subjugate our own personal goals to a deep, personal
commitment to serve our President, our Secretary, and our Nation.
This commitment must be our homing beacon throughout our career in the
service of our government.
Each one of us is here in HEW because Richard Nixon was elected to the high
office of President of the United States. Further we are here because Secretary
Finch has seen fit to place trust and confidence in us and to approve our selection
to fill a position in HEW.
In short we owe our positions to the capability of the President to come ofi
the mat, so to speak, and drive through hard, vigorous years of campaigning to
win the nomination of the Republican Party, and then go on to win the Presidency
of the United States with the valiant help of hundreds of thousands of dedicated,
hardworking supporters, campaign workers, and contributors.
So also are we here because Secretary Finch has seen fit to ask us to serve with
him and to help him move this Department forward as he and the President seek
the solutions to the people problems which, if not solved, might well rupture and
destroy the society which the people of our Nation have created.
Obviously, we are a chosen few, an elite group — make no mistake about it —
there are thousands of Repubhcans who are knocking at the door and who would
be pleased to be in our positions.
Appreciate this hard fact of life. Appreciate the fact that every single member
of the opposite poHtical party is working hard day and night to ensure that the
President of the United States is hampered and harassed in carrying out his pro-
grams and that the President of the United States is not reelected to serve a
second term.
This is a real hard political fact of life. This is in keeping with the nature of
our politicial system. Without such a system, one party government could pro-
duce a totalitarian state. We accept tliis fact of life; so does the opposing part3^
Accordingly, do not retch or quiver wlien we insist that the preponderant majority
of our colleagues — political ai)i:)ointees — be members of our own party.
Again it is plainly obvious that we must be dedicated and devoted to the con-
cept that our Republican President will be a great President, that his programs
will be successful, and that he will be reelected to a second term.
Above all other qualities of character that we hold near and dear, we must have
deep, abiding, sincere lo3'alty to our President and to our Secretary.
Earlier I placed great emphasis on service. Now I want to drive home hard the
emphasis on loijaltij. I do not speak of blind, automatic loyalty. I speak of a sincere,
an intelligent, a freeh^ made decision to join President Nixon and Secretary Finch
because we believe in them, trust them, understand the goals and objectives they
hold, and desire to support them with the deepest sense of dedication and total
commitment.
Should there be anyone of you here present today who cannot make this com-
mitment, 3'ou must — in order to maintain j^our own dignity, self-respect, and
integrity — examine deeply j-our own hearts and minds and reach a decision — to
serve or not to serve.
92
Do not today understand me to be saj'ing that each of you is to consider your-
self as a fanatic, blind, unreasoning, partisan Republican of the brand often cari-
catured by Herb Block and others who are determined that an enlightened, hu-
man, understanding Republican President shall not succeed.
No, I am saj-ing that you are here because jow have made a profound commit-
ment to support with total dedication the President of the United States; that you
have made this commitment intelligently because you wish to join with him in
bringing this country together again; that j^ou have made this commitment in-
telligently because you wish to join with Secretary Finch in assisting him to per-
form the tough tasks which lie ahead — tasks which must be performed well in
order that the President may accomplish his objective.
Our Nation has elected a Republican President. We have a Republican Adminis-
tration. We have Republican approaches to the problems of our people. We have
the knowledge of the President's goals. We have the common sense to know the
desires and objectives of the President and the Secretary — we must have the
loN'altj', the courage, and the commitment to do their will — -not our will. This
means, plainly and simply, that we get on the track with the President and the
Secretary and that we stay there and track with them.
You may say, "I am not political" — "I am an Independent" — "I do not care
what party is involved, I vote for the man" — "Politics is a dirty business," and
so on. From the vantage point of my ancient age, let me assure you that no Ameri-
can can afford to ignore politics, to ignore the machinery of government, to adopt
an attitude of "Let George do it." This attitude is guaranteed to ensure the demise
of the two party sj'stem — our form of democracy. No American can afford to
avoid involvement, particularly in today's world, when the thing to do is to be-
come involved, to participate, to take a position.
Now let's go on to other lessons learned:
LoA-alty includes also a dedication to your immediate superior and to those who
work with you in our cause, on our team.
Loyalty includes an avoidance of criticism of our leaders and of our colleagues.
Criticism which is destructive in nature is cancerous — it will destroy us and our
entire team. Snide remarks and facetious comments lightly made often come back
to haunt us. Too often have I heard this form of banter engaged in innocently.
Too often have I seen the results published in newspapers or made the subject of
remarks by the boob-tube word mashers.
Loj^alty includes having the common sense and decency to deal with others in a
manner calculated to bring credit to the President and the Secretary. We are the
President's people — we are the Secretary's team — and when we speak, we speak
for the Secretary but w^e do not speak as the Secretary. We do not wear the
Secretary's mantle. Therefore, while we speak from strength, we do not speak with
arrogance. Courtesy is the key. Our errors here become the Secretary's errors and
place him in a very delicate" position. Instead of strengthening him, we weaken
him.
Loyalty includes the touching of all required bases as we set out on our daily
rounds to carry out the will of the Secretary. We deal directly and candidly.
We deal with "those who ought to know and who have a responsibility to the
Secretar.y, too. In short, we do not "end around."
I believe that I may have placed the concept of service and loyalty in the proper
perspective and I want to go now to a few more pitfalls and prattfalls that can
harm us, the President, and the Secretary.
Not one problem that we handle in HEW is simple. This is the lot of a Depart-
ment responsible for the problems of people at the national level. Accordingly, not
one task assigned to vou is of a nature such that you can give it the so-called
"Hght touch." You have to shred the problem; look at it from every angle; learn
to work in depth; learn to dig hard; learn to turn in a work product that is as
thorough, as logical, and as clear as you can make it. You should be concerned
with the overview, the big policy, the grand decision. But you also are in a training
period, a development period — ^we all are. Do the tasks assigned well and you will
find that your personal job satisfaction is enhanced and your responsibilities are
increased. Above all do not seek out only the so-called "glamour work"; put your
shoulder to the wheel and be eager to tackle the "nitty gritty" chores, too.
The President and the Secretary appreciate another hard fact of Ufe. Simply
stated it is that intelligent members of an ehte group — our team — will generate a
wide diversity of views and rather strong opinions regarding the highly charged
issues facing our Nation today. This is great and we do not want to stifle the minds
and stagnate the thought processes of the members of our team. At the same time.
93
and although we beUeve in and foster the thorough airing of our views and opin-
ions within our own family, we must present a united front in support of a decision
once made by the President or the Secretary. Our support must be total and ab-
solute.
In conversations with others, we do not refer to RHF as "Bob." He is the
Secretary to all within the Department and to outsiders. Be extremely careful at
all times to maintain the dignity of his office, but do it with warmth and humility —
not with arrogance. We have enough problems in HEW now without creating
more by being inept or overbearing.
Even though each of us is close to the Secretary, resist at all times the tempta-
tion to enhance our own image by "puffing," or by our actions demonstrating
how close we are to the Secretar3^ We would not be here if we were not close to the
Secretary and those with whom we will come in contact know this political fact of
life. You will demean yourself and the Office of the Secretary by taking "name
dropping" advantage of your position.
Lobbyists — You will come in contact with them; they have a legitimate reason
for existing. Be a courteous listener, but a niost careful talker. Make no commit-
ments whatsoever in the name of the Secretary: Moreover, do not even talk in
such a manner to "lead on" a lobbyist — you trap yourself in a very difficult
situation and you can hurt RHF badlj^ by this sort of conduct. Again, be a cour-
teous and attentive listener, but a most careful talker.
Telephone Conversations — The telephone is obviously an invaluable communi-
cation tool, but do not say in a telephone conversation that which you would not
care to see in print tlie next day. Once again the concept is that of tact, courtesj',
patience, understanding, care and concern — but no commitments in the naine of
the Secretary, and no "puffing."
Mail — The principles I have spoken of thus far apply as well to all mail leaving
the Department. When preparing correspondence for the Secretary's signature,
or when reviewing it, never treat it lightly, no matter how simple the subject.
The reasons are obvious — ;every letter portrays the image of our office and of the
Department; further every letter reflects the substance of our positions and
policies.
Security — Recent examples should be sufficient to impress upon each of us
the critical importance of the general securitj' of our office and our official, as well
as unofficial, papers. Every Department of government is loaded with prying
eyes — eyes that are prjang for one reason or another. Be assured that none of
this prjdng has as its objective the enhancement of the Nixon Administration or
the enhancement of our Department. We deal with critical issues of great impor-
tance to many diverse groups in our land. Be mindful of security at all times;
above all leave a clean desk when you leave for the day and be certain that critical
papers are under lock.
The effective functioning of any group is related to the degree of cohesiveness
and common purpose which has been established and accepted throughout the
group.
Let's look to see if we have the ingredients in our make-up to generate that
sense of cohesiveness and common purpose.
Why are we here?
A. Because we believe in President Nixon and Secretary Finch.
B. Because we are dedicated to them and their work.
C. Because we ask only to serve; not to be served.
D. Because we have no greed for personal aggrandizement.
E. Because we feel a deep sense of personal pride, honor and hxiroility in being
asked to serve.
How do we operate?
First, we will operate as the Secretary desires us to operate.
Second, our mission is to do just as much for the Secretary as we can to remove
from his shoulders unnecessary burdens.
Third, we do our work in accordance with the guidelines laid down by the
Secretary.
Fourth, we are staff assistants to the Secretary — not decision makers or policy
makers, even though we may well have a strong input to him prior to the moment
decisions are made and policies established. Once made, we support them to the
hilt!
Fifth, we operate in such a way as to reflect credit upon the Secretary for
choosing us to occupy the important positions to which he has appointed each
of us.
91-331—73 7
94
Sixth, we do not throw around the weight of the Secretary's Office. We are
courteous and considerate in all of our dealings with the people in the Depart-
ment, yet we are not to be hoodwinked or misled into presenting slanted infor-
mation to the Secretary.
I believe that each of us can agree that we have the ingredients required to
function effectively in behalf of the President and the Secretary.
Our objective — to assist, to the fullest extent, the Secretary in his objective to
make this the best Department in the Nixon Administration; to establish this
Department as a Department on the move, a Department composed of
compassionate and understanding people who are determined to generate and
manage plans and programs designed to enrich the lives of all Americans ; to make
this Department so attractive and so meaningful in its work that members of
the civil service, and others not now in government, will be eager to join HEW and
assist the Secretary to achieve his objectives. Imaginative, creative, dedicated, and
competent people form the heart and flesh, the bone, sinew and muscle of any
organization whether it be the corner grocery store, or a niajor Department of
the Government of the United States. We must have them and we must work
with them in such a manner that they can realize their full potential in the best
interests of the people of the United States.
Senator Bayh. Moving to the question which I asked, as you
pointed out it is a tough question, but it is the ultimate question.
Mr. Gray. It is indeed and that is the way I answered it this
morning in my statement. I have said this, and I made that state-
ment during the Watergate to my people, if anybody puts any heat
or pressure on me I am going to resign and go back to southeastern
Connecticut. The guys in the FBI know that.
Senator Bayh. I think j'ou are honest and you mean that and you
will do 3^our best to accomplish that.
Now, may I ask one or Uvo more questions, because I think you
realize that was a very nebulous answer that really didn't get down
to the
Mr. Gray. No, I mil answer it specifically.
By statute I am responsible to the Attorney General. This is what
the Congress has said. He is mj" boss.
Senator Bayh. Let me ask a couple of specifics in light of the
fact that two recent Attorneys General have also been the campaign
manager for their President, Robert Kennedy and John Mitchell,
which puts a difficult situation in a different light.
If I may ask you to, just very quickly, hit that Ehrlichman memo
again that went out to the field. The response I thought I heard you
give to Senator Gurney's question was that this was just sort of a pro
forma thing, just sort of a standard operating procedure, that it
happened all the time. Did I hear you answer that to the affirmative?
It seemed contrary to everything you said before.
Mr. Gray. What I was answering there with Senator Gurney was
the fact that none of these people thought there was anything irregular
about this because of the fact that these kinds of requests do come to
us, from the White House, through the Deputy Attorney General's
office, or through the Attorney General's office.
Senator Bayh. If you look at the Ehrlichman memo, that prima
facie is almost like you were asking that local FBI agent to be the
local campaign manager, to pick out the sensitive spots so we can
avoid them, to pick out the kej^ crime-related events that are
occurring in the area that the President might want to attend. I
don't think that is — or is that the normal procedure?
Mr. Gray. No, that is not what was asked really. All this involved
was reporting back what are the criminal justice issues in your area.
Senator Bayh. Well, I suppose
95
Mr. Gray. I said earlier, Senator Bayh, that this thing was wrong,
it was improper, and John Ehrlichman has said this. What more can
I say in response
Senator Bayh. I just thought I misunderstood you, I am glad I
didn't misunderstand you.
Mr. Gray. No, but we get a lot of these tA^pes of requests. The
thing that was lacking here was the judgment by my people who said
this was another request from the White House, another request that
has come from the Deputy Attorne}^ General.
Senator Bayh. You said none of your assistants objected to it?
Mr. Gray. No, they didn't.
Senator Bayh. Did Mr. Bishop have to say anything plus or minus
about it?
Mr. Gray. No, and I talked to him personally.
Senator Bayh. I read some place that when you were at Quantico
at the FBI Academj' there, this question came up and you were
quoted as saying, "Wouldn't j'ou do that for the President." Is that
an inaccurate quote?
Mr. Gray. It is totally and completeh' and terribl}' and blatantly
false.
Senator Bayh. I am glad I asked the question so you could laj^
that to rest.
Mr. Gray. Yes, sir.
Senator Bayh. Now, here is
Mr. Gray. I think that appeared in Time magazine, didn't it?
Senator Bayh. 1 don't know.
Mr. Gray. Yes, that was in the writeup in Time magazine, I think
in the Januar}^ 15 issue.
Senator Bayh. You answered it so I am not going to pursue it.
The serious question, the blockbuster I asked a minute ago, really
the test you are going to have to face in my estimation, is to whom
you must belong.
First to yourself and to your conscience, but what official? You
have refused to buck certain memos on to people with reference to
the Watergate and this kind of thing.
Mr. Gray. That was June 19.
Senator Bayh. But apparently you feel there are limits beyond
which you as Du-ector are not responsible to the Attorney General?
Mr. Gray. Are?
Senator Bayh. Are not responsible.
In other words, there are some things ^'^ou just don't have to give
to the Attorney General?
Mr. Gray. No, I don't feel that way at all because the Attorney
General and I had previously agreed in this case that there would be
an aggressively pursued investigation and we would hold it closely in
the initial phases and that will be in the documents that I have
introduced into the record today, sir. I was not operating on my own
and I won't. You know I have had some conflict over this. As a matter
of fact, when I was Assistant Attorney General I almost resigned
because, you know, it came awful close to conscience butting up to
what I was told to do and you jolly well have to face up to this sort
of thing.
Senator Bayh. Wliat if you are asked by the Attorney General
or by Mr, Haldeman, by a WTiite House staff official very close to
96
the President, for a field investigation, an FBI check, of a nationally
known newspaper columnist or a nationally known television col-
umnist, either one of which may have just made very critical remarks
about the President of the United States?
Mr. Gray. I would say, "Mr. President, there is no jurisdiction,
and we have no right to conduct any such investigation unless there
is jurisdiction."
From May 3, the first day I talked to the men of the FBI, 1
have emphasized that we will not proceed beyond the perimeters
of our jurisdiction and I have even required them to submit to me
the reason for an investigation; and state therein where doth our
jurisdiction lie.
Senator Bayh. If it is for a Federal job application, we had this
one unfortunately where a television commentator was being
investigated for
Mr. Gray. I don't know the facts on that but if the request came
over to me and it was official, and on its face correct, and stated that
"XYZ is being considered for appomtment to the position, will you
please conduct a background investigation," I probably would go
ahead and do it.
Senator Bayh. You would say the same thing about your concern
for candidates or Members of Congress?
jVIr. Gray. 1 don't know what the same thing is, Senator.
Senator Bayh. If you were asked for a field check?
Mr. Gray. If I were ordered to conduct an applicant investi-
gation— I see what you mean, if I were ordered to conduct a field
check
Senator Bayh. In other words, you have a hot campaign and
somebody wants to get something on somebody else, you would
say no.
Mr. Gray. No. I would say no. No jurisdiction.
Senator Bayh. That is all, Mr. Chairman. I reserve my questions.
I don't w^ant to monopolize the time.
The Chairman. Marlow.
Senator Cook. Thank you, Mr. Chairman.
Mr. Gray, 1 am fast reading tlirough the Cleveland speech and I
am finding it very diflScult to find political consequences, I must
confess to you. As a matter of fact, if we start taking paragraphs
out of context in relation to then full meaning on freedom under law
and the right of a trial by jury, then I would hope that we don't
go so far as that the liberal-minded would deny the freedom of the
podium to the individuals in this country.
There is something that I really would like to discuss with you.
Senator Bayh. Will the Senator yield? May I say that the whole
speech is in the record and I am sure that he did not intend to infer
I was taking the speech out of context.
The Chairman. The whole speech was put in the record this
morning.
Senator Cook. I merely made the point to the Senator. He quoted a
small part of it. For the benefit of the press, I would love to — if I had
the time — read the whole speech, Mr. Chairman.
The Chairman. It is in the record.
Senator Cook. I must say to you I doubt very seriously that there is
anybody sitting back at those tables there who will read the whole
97
speech simply because it is in the record. I don't want to do them an
injustice, but I doubt seriously that they would do that.
Mr. Gray, on our list of people requesting to testify, appears the
name of Mr. Jack Anderson, and also the name of Mr. Les Whitten,
who is an associate of Mr. Anderson. Now, I would like for you to dis-
cuss the actions of your Department in regard to the altercation with
Mr. Wliitten in, I tliink, January, and also the great hue and cry — if it
be true, b}^ the way, 3^our entire organization should be condemned —
that his first amenclment rights were violated ; whether Mr. Whitten
Avas indeed involved in, and was in the possession of, documents that
were stolen from the Bureau of Indian Affairs and, to the best of your
abilit3^ to put into this record whether the suggestion of a search war-
rant originated with your shop, or Avith the U.S. attorney's oihce, be-
cause I would like to know whether 3rour Department is shadow boxing
with the first amendment, or whether it isn't.
Mr. Gray. Yes, sir.
This case arose as a result of the theft of documents from the Bureau
of Indian Affairs. We had been directed by the Department of Justice
to look into this matter, to conduct an investigation, and, indeed, we
began such an investigation. Also, this particular column was printing
excerpts from various of these documents, as I recall, stating, in fact,
that this column had access to these documents, and was going to print
these documents.
So we did endeavor to track down these documents in many areas,
in many parts of the country. It was again one of these investigations
that was going from the office of origin to many other field offices
through the nature of leads, and it is true that we did have an inform-
ant in this case, who was a member of the Metropolitan Police
Department, and it is true that the Metropolitan Police Department
advised us that this informant had information to the effect that these
documents were in a certain location in North Carolina, that these
documents wxre initially going to be dehvered at North Carolina to
representatives of this column for a sum of money, and then later we
were informed that the documents were going to be shipped to Wash-
ington and would come in through a bus — a commercial bus — and
that the documents were going to be picked up at the bus station.
(Mr. Gray subsequently submitted the follo\ving document:)
Mr. Gray. Upon checking the records, I have learned that information received
from the informant was to the effect that he was to pick up the files in Pembroke,
North Carolina, in his automobile, and transport them back to Washington, D.C.,
for transfer to Jack Anderson. Anita Collins was to accompany him on this trip,
and this trip was to occur within a few days after January 23, 1973.
Senator Cook. As a matter of fact, they really came from South
Dakota, did the}' not?
Mr. Gray. I don't realh^ know that, Senator Cook. I couldn't
respond to that. I don't know that much detail, but I will provide a
response for the record.
(Mr. Gray subsecpiently submitted the following document:)
Mr. Gray. Upon reviewing our records, I found that they came from Rosebud,
South Dakota.
Senator Cook. All right.
Mr. Gray. We were also informed that when the informant and a
woman, Anita Collins, went to the bus station to pick up these docu-
ments the informant asked, "What do we do if the police apprehend
98
us," and lie was told, "We say we are returning these to the Govern-
ment."
They picked up the documents. They returned them to Hank
Adams' home or his place of residence at the time which I believe was a
Holiday Inn. That area, of course, was under surveillance and our
agents were watching it.
(Mr. Gray subsequently submitted the following document:)
Mr. Gray. Upon checking the records, I have learned that Hank Adams did not
live at the Holiday Inn at the time the documents were delivered to him, but
rather across the street from the HoUday Inn.
We also had information that that evening or the following day,
the transfer for money was to be made, and when an individual showed
up we waited until these documents were brought out of the house
and the people actually had them in their possession before we moved
in to make the arrest, so that it was in our judgment a valid arrest.
We had been in contact with the Department of Justice attorneys
who had been apprised of the facts. The arrest was authorized by
the assistant U.S. attorney. That basically takes it right up to the
arrest position.
Senator Cook. It is my understanding that it is Mr. Wliitten's
contention that he was in the process of returning, which seems rather
strange that one would pick them up, two people would pick them
up, at a bus station and deliver them to someone's room so that some-
one else could bring them back to the BIA or somebody else the next
day.
Mr. Gray. We had no information to that effect from the informant,
and we have checked with everyone at the Bureau of Indian Affairs
that we could check with, and not one of them said that they had
any such appointment with Air. Adams. But we also know from our
investigation that much mil be made of the fact that a week or 10
days or so prior to that, Mr. Adams had said to a Bureau of Indian
Affairs official, Mr. Oxendine, just in passing ^\'ith regard to the return
of the documents, "Maybe they will be returned, maybe they won't.
I don't know," Something to that effect, I know. No commitment
was made and Mr. Oxendine was asked bj'^ our investigators poiat
blank whether or not any commitment had been made to return any
documents and his testimony or his statement to our interviewer
was "no."
Senator Cook. Was Mr. Wliitten apprehended by your asenta
with, these documents in his possession?
Mr. Gray. He was actually standing A\ith the box containing the
documents in his hands and the seats in his automobile were placed
in a down position indicating, certainly at least to us, they were going
to be placed in that automobile. One box was on the ground ri^ht
there beside Mr. Whitten.
Senator Cook. My understanding is it constituted some 150 pounds
of Avhat, 2,000 pounds of documents, that apparently they surmised
were removed from the Bureau, is that correct?
Mr. Gray. That is correct. Senator.
Senator Cook. Let me ask you one of the problems that puzzles
me. Was it at the request of 3^our Department or was it at the request
of the U.S. attorne_y that apparently you proceeded further and by
reason of subpena to acquire the telephone records of Mr. Anderson?
99
Mr. Gray. No. This was, actually, an action initiatied by the
assistant U.S. attorney in charge of the Federal grand jury, and these
subpenas were prepared in his office and were executed, I believe,
by the assistant clerk of the grand jury. The time frame was picked
out and there was no attempt made to inquire into anyone's sources,
])ut attempts were made to locate the documents that still remained
out of the hands of the Bureau of Indian Affairs. Of the toll calls,
96 were selected as the most probable because of their location.
This is the reason for them. We didn't just go through all the toll
records and call everybody and check everybody. That was not the
])ur])ose at all.
Senator Cook. Well, let me ask you the hard question. If it really
wasn't the purpose wlw was it necessary to subpena records way
prior to the actual Indian takeover of the BIA buildings because
that occurred on November 3. It is my understanding that the
grand jury, through the U.S. attorney, requested through the sub-
pena that the records be acquired for some 60 days or even longer,
6 months.
Mr. Gray. Six months, sir.
Senator Cook. Six months prior to that time. Wby was that neces-
sary?
Mr. Gray. I don't know what the assistant U.S. attorney's inten-
tions might have been there. I can surmise that he may have been
looking for any calls that would indicate a prior concert of action or
arrangement to participate in this kind of tiling in return for some-
thing. I don't know. This is a complete surmise on my part, but
suffice it to say when the toll calls were obtained we onh^ looked at
those following the event itself in order to locate the papers. We
were not looking for something that happened before.
Senator Cook, Has any action been taken on any records, on any
facilities in regard to either Mr. Anderson or Mr. Whitten, his asso-
ciate, since the 2d day of or the 15th day of February, when the grand
jury returned a no bill?
Mr. Gray. Has any action been taken?
Senator Cook. By your Department.
Air. Gray. Against them?
Senator Cook. No; have any activities in regard to any records
that you may have had, have you — are you continuing this or have
you — because of the no biU return, have you discontinued that, or
are you pursuing it?
Mr. Gray. No, sir; it has stopped; the grand jury has spoken.
Senator Cook. Thank you, Mr. Chairman.
The Chairman. We will recess now
Senator Byrd. Mr. Chairman, until when will you recess?
The Chairman. 10:30 tomorrow mornmg.
Senator Byrd. Could we not pursue this for a little while? I have
waited all day patiently and I have only a few questions. I may not
be able to be here tomorrow.
Thank you.
Mr. Gray, I want to commend you on the statement which you
made earher today.
Mr. Gray'. Thank ^''ou, Senator Bj^rd.
100
Senator Byrd. This nomination, Mr. Gray, troubles me in view of
the fact that it is the first time that the Senate will have had an
opportunity to pass on the confirmation of an FBI Director. We have
been saying a lot around here about the Senate's constitutional
powers, and its proper place in the system of checks and balances,
and so on, so I think that the Senate ought to approach its prerog-
ative in this instance with a great deal of diligence. I have been
concerned with respect to your apparent political activities over a
long period of time. If this were a nomination to a Cabinet office, it
wouldn't trouble me at all in that regard, because I would expect the
President to name people to Cabinet offices who have been active
politically in his behalf.
But in view of the fact that this is the directorship of the FBI, it
does concern me because I fear that the FBI could, under a politically
oriented Director, become the political arm of the White House —
whether it be a Democrat in the White House or a Republican in the
White House. I think this would be a danger to the protection of the
constitutional liberties of all of our people. I think the politicization
of the FBI could — I am not saying it would happen at all — but it
could be the first step toward the conversion of the FBI into a sort of
American Gestapo.
Now, you have assured the committee that you will not be active
politically in the future. Of course, Mr. Nixon will probably not be
active in the future, either. He has indicated that he has run his last
time, and he has 4 years in which to serve, but I think that the com-
mittee and the Senate ought to be very, very careful about confirming
a nominee whose background has involved a great many partisan
political activities of service to his party. Of course, I think we could
avoid this risk, with all due respect to you personally. I have certainly
nothing against you personally; I think you are a very charming man;
I have no question as to your honesty, your character, your integrity.
But I think the Senate could avoid this risk entirely if it insisted that
the President send up a nomination of someone who had not been
politicall}^ active to the extent that I am led to understand that you
have been.
Now, I have no secret files. All the information I have has been
gleaned from press accounts which are available to the public, and I
don't consider it my role to try to persuade any other Senator to
interpret press accounts as I interpret them. I have not approached
any other Senator with the idea of tr^dng to persuade him to vote
against your confumation. I don't presently intend to.
Mr. Gray. Thank you, sir.
Senator Byrd. But I have to weigh the facts as I see them and as I
understand them, and reach m}'' conclusion, and that is as far as I now
think my role goes in this instance.
It has been said that you have been very active in behalf of the Re-
publican Party for several years. Would you explain that?
Mr. Gray. Yes, sir, I would be happy to put my activity on the
record here.
On July 1, 2, 3 or 4, after June 30, 1960, I left the Pentagon for
room 361, Senate Office Building, and served on the staff of the then
Vice President, Richard Nixon, and my first assignment was to work
with analysts regardingjmail. Every assignment I received thereafter
101
was logistical in nature — go out and find space, put together a group
of lawyers to answer mail, find volunteers, rent the basement of the
wSolar Building, and that type of thing.
Then, of course, I returned to Connecticut in early January of 1961,
and the first ]5olitical operation that I can recall was Mobilization of
Republican Enterj^rise, which was a thing that Congressman Bob
Ellsworth was heading up to bring together Repubhcans at the grass-
roots— -precinct worker type people — -ready to go out and ring door-
bells. Everybody Avas given a portfolio or a kit and told to go out and
do these kinds of things.
I did nothing with the kit. The kit I destroyed last year when I was
cleaning up.
From May to June — the middle of June 1962 — I served with
Angelo Santaniello to try to help get the gubernatorial nomination for
Peter Mariani, an electrical contractor, from southeastern Con-
necticut. For roughly 45 days, I did the in-house work, and wrote
Pete's speeches, and rode around with him to round up some delegates
who would vote for Pete at the Republican State Convention to get
the gubernatorial nomination of the Republican Party.
From June to November of 1962, I served as finance chairman of
the New London Republican Town Committee. In checking the
records back there, they can't even remember me in the Committee
of One Hundred, but I know the Republicans set up a Committee of
One Hundred and I know that I was assigned to the campaign opera-
tions subcommittee chaired by Joe Burns, vice president and general
counsel of Fuller Brush. Even Joe didn't remember that I served on it.
But I know I served on it. I know I attended one meeting near the
Wilbur Cross Parkway in Hamden, at a place called the Carriage Inn,
in 1966.
Also in 1966, Bill Cottison, an advance man for former Vice Presi-
dent Nixon, came to New London and introduced himself, and said he
was there to advance Mr. Nixon's appearance on behalf of Joe Gold-
berg. I referred him to the Republican town chairman and let him
work with her to make regular arrangements he had to make.
In 1968, I met with Mr. Nixon in New York in his office in January,
spoke with liim, and just talked about 20 minutes in general terms,
and told him that I hoped that he was going to run for the Presi-
dency. Later in 1968, I wTote a letter for the candidate's signature on
the Small Business Investment Company industry, settmg forth liis
position in response to questions that that industry had asked him. I
was asked to do so because at that time I was a member of the board
of governors of the National Association of Small Business Invest-
ment Companies. I was not asked to participate in the campaign in
1968, and I did not. I stayed right in my law office and practiced law
and wrote this letter.
And then I served — in fact, I didn't think I was going to get into
Government. I didn't think I was going to be invited to join the
Nixon administration. The newspaper publisher in my town, a fellow
named Barnard Colby, of the New London Day, got a letter from
Harry Flemmg to recommend people for Government, and he said,
*T sent 3'our name in, Pat."
I got one of the forms back ; I filled the bloody form out, and sent it
back in.
102
In the meantime, I had been trjang to get in touch with Bob Finch
in Sacramento to say, "I really want a place in this administration to
help in the transition." It wasn't until January 12, 1969, that a meet-
ing was finally arranged for me and Bob Finch in the Plaza Hotel in
New York on a Sunday morning at breakfast, and he said, "I would
like you to come to HEW with me," and that is the way I came to
HEW.
May I say. Senator, if I am such a big friend of the President and
such a partisan politician, how come I am outside looking in and trying
real hard to get in? That is the situation I was in.
In 1970, after leaving HEW, I attended one meeting of the
Republican State platform committee, and I was assigned to the
education subcommittee. I attended one hearing in Hartford. I
could not attend any more because at the same time I was embarked
upon a program in the South trying to assist in making the transition
from the dual to the unitary school system as a special consultant to
the Cabinet Committee on Education.
In 1970, in the Robert H. Steele for Congress campaign in
Connecticut, I agreed to meet Counselor Finch at the airport, took
him to a testimonial dinner in Norwich — actually it was not Norwich,
it was outside of Norwich, at a boys' school, and served as a toast-
master at dinner that evening — and in 1970, I visited Tom Meskill's
staff during the transition on what to do about personnel, how to
handle personnel.
Then in 1971, I gave $250 to the Republican Party in Connecticut
and became what is called a keyman in Connecticut. It is another
gimmick to raise money. You know, if you give 250 bucks, you get a
keyman card, and that is the extent of it.
Senator Byrd, I wouldn't want my remarks to be taken in any
way, if you please, sir, to be in any sense of the word a backing off from
the thought that I left the U.S. Navy to help Richard Nixon be elected
President. I am a Nixon supporter; I admire and I respect and I
have an affection for the President. I have for every President.
Senator Byrd. Well, Mr. Gra}^ I have a considerable amount of
respect for him, too.
You indicated earlier today you "have never been a partisan
guy."
Mr. Chairman, has anyone made reference to the statement by Mr.
Gray when he was at HEW when he was speaking to appointees in
the Department?
Mr. Gray. Yes, they have, sir, and we put that in the record.
Senator Byrd. The statement has been put in the record?
Mr. Gray. Yes, sir.
Senator Byrd. Very well. Were smy excerpts read from it?
Mr. Gray. Yes, sir.
Senator Byrd. It sounded very partisan, did it not?
Mr. Gray. Yes, sir. I think, as I said to Senator Bayh, I think you
also have got to read the last paragraph. Wli at I was trying to do was really
point out how important it is to come into Government service and
to serve well and not seek personal aggrandizement, and I pointed out
very carefully that each party recognizes this. There was no knifing or
cutting in that speech. You know, when I think in terms of
partisanship, I think in terms of knifing and cutting and hammering
at people, and I was not doing that. Maybe that is not the way to
think about partisanship.
103
Senator Byrd. I do not necessarily think that, Mr. Gray; I just
think you made a pretty partisan speech.
Mr/ Gray. Right.
Senator Byrd. As a Democrat, I could make that same speech and
feel that I was whooping it up for my party.
Mr. Gray. You see, I have not served in political life, Senator
Byrd, as long as you have, and that is why I came out of the Navy
with perhaps an idealism, and I see that same idealism in political
leaders, and you know, to be a political leader is not really a bad
thing because the political leaders make the democratic process work.
I do not see what is so bad about being a political leader and trying
to do right and to do well when you happen to hold a public position
of trust and confidence, and that is what I — when you read that
speech, that is what I was trying to tell those young people over there,
the facts of life.
Senator Byrd. I wish more people felt that way about political
leaders, Mr. Gray.
Mr. Gray. Well, thc}^ should feel that way because we ask an awful
lot of our political leaders, and we kick them around plenty, too.
Senator Byrd. But I find — I will not belabor the point since the
statement is going in the record — but I find it a little hard to reconcile
what I consider to be a pretty partisan speech in the context of where
you were then making it and, in the time frame, it is a little hard to
reconcile that with a statement that you never have been a partisan
guy.
i am only concerned about the partisanship now as we approach the
confirmation of this nomination.
Mr. Gra}^, earlier reference was made to the O'Donnell memo
urging that you go to Cleveland. I believe you stated that 3-0U ques-
tioned the propriety of this memo?
Mr. Gray. I did.
Senator Byrd. Whom did you ask about it?
Mr. Gray. I asked our Cnme Research Division to look into this
and tell me if it was a political thing. If it was, I was not going, and
that is exactly what T said.
Senator Byrd. When did you accept it?
Mr. Gray. In June, early June. Mid-June, mid-June somewhere
around the 16th of June, in that time frame, 16, 17, 18. We will
provide the acceptance letter for the record.
Senator Byrd. And you indicated you had received a request
directly from the Cleveland City Club speech
Mr. Gray. Yes. sir; you will have this in the record, too.
Senator Byrd. What was the date of that request?
Mr. Gray. It was in that vicinity, but I will have to put that in
the record. We will have to put it in the record, sir.
(Mr. Gray subsequently submitted the following documents for the
record :)
In checking our records, I find that the initial invitation from the Cleveland
City Club was contained in the June 13, 1972, memorandum from Mr. O'Donnell.
Our files did show that the Cleveland City Club had previously requested the
appearance of Director Hoover in 1968 and again in 1970. Mr. Hoover had not
been able to accept either commitment, but it had been recommended to him that
an FBI official appear before this group, if agreeable with them. I submit for the
record pertinent correspondence from our files covering these points.
104
The White House
Washington, D.C., June IS, 1972.
Memorandum for: Hon. L. Patrick Gray.
Prom: Patrick E. O'Donnell.
Subject: Freedom's Forum— The City Club, Cleveland, Ohio.
The City Club has asked our assistance in attempting to secure your participa-
tion as a key speaker sometime during the period following July 1, 1972. Since
its founding fifty j'ears ago, Cleveland's Citj^ Club has been a focus and one of
the bulwarks of freedom of speech in one of America's great cities. The Club
maintains a deep interest in affairs of government, economics and politics, both
national and international. It offers a prestigious meeting place for the open
discussion of important social, political and economic problems.
They meet ever.y Friday at noon and have a 300 maximum attendance. However,
if you were inclined, they could "go public" and provide almost a crowd of any
size you might desire. Both Secretaries Hodgson and Shultz have recently ad-
dressed the Club and just recently Ambassador Bush delivered a well-received
speech.
With Ohio being crucially vital to our hopes in November, we would hope you
will assign this forum some priority in planning your schedule. In the event you
are interested, I have full background material available. Incidentally, Under
Secretary of Commerce Jim Lynn is quite familiar with the Club. Many thanks.
June 16, 1972.
To: Mr. Bishop.
From: M. A. Jones.
Subject: The City Club, Cleveland, Ohio, request for appearance of Acting
Director Gray.
A memorandum dated June 13, 1972, from Mr. Patrick E. O'Donnell, advised
Mr. Gray that his assistance had been requested to secure Mr. Gray's participa-
tion as a key speaker before The City Club of Cleveland, Ohio, sometime after
July 1, 1972. He pointed out that the Club meets Friday at noon, and although
they have a maximum attendance of 300, they could "go public" if Mr. Gray
were so inclined. He commented that Secretary Hodgson and Shultz recently
addressed the Club as w^ell as Ambassador Bush. The Club offers a prestigious
meeting place for the open discussion of important social, political, and economic
problems.
The Cleveland Office has advised that The City Club has no pohtical connec-
tions and actually the majority of the members could be classified as "Hberals."
The Club engages in discussing controversial subjects and it is entirely possible
that some embarrassing questions could be put to Mr. Gray which might prove
embarrassing to him and the Bureau. They also noted that these meetings are
carried live on local radio stations.
Although Cleveland points out that this Club discusses controversial subjects,
it is beheved that it might be advantageous for Mr. Gray to appear before such
a group. As indicated, the Club is dominated by liberals and these are the type
of people we should be contacting in an effort to "convert them."
Recommendation: Mr. Gray may desire to accept this invitation and, if so, he
should indicate some Friday after July 1st when he could appear. (Due to other
commitments, it would appear that a JFridaj'^ in August or early Fall might be the
most convenient.) Thereafter, additional details will be obtained from Mr.
O'Donnell.
June 27, 1972.
To: Mr. Felt.
From: T. E. Bishop.
Subject: The City Club, Cleveland, Ohio, Request for Appearance of Acting
Director Gray, August 11, 1972.
In a memorandum from Jones to Bishop dated 6/16/72, there was set forth
details concerning an invitation extended to Mr. Gray by The City Club of
Cleveland, Ohio, for him to be a key speaker at a Friday noon meeting of the
Club sometime after July 1, 1972. It was recommended and approved that Mr.
Gray accept the invitation if possible. Mr. Gray noted, "I will do it but push it
out ahead. Check with Mrs. Neenan."
After consulting with Mrs. Neenan, on 6/26/72 Bishop advised Patrick E,
O'Donnell of The White House, through whom the invitation had been extended,
• 105
that Mr. Gray could make this appearance on August 11, 1972. O'DonneU stated
that he would check with Lawrence Robinson, Executive Director of The City-
Club of Cleveland (telephone — area code 216, 861-1260), to ascertain if this
date is satisfactory and advise Bishop of the result on 6/27/72.
On 6/27/72, Mr. O'DonneU advised Bishop that Mr. Robinson had informed
him that the Club would be delighted to have Mr. Gray speak to it at its noon
meeting on Friday, August 11, 1972. He advised that Mr. Robinson stated that
he would furnish Mr. Graj^ additional details concerning the Club and the meeting
in question in a letter to be forthcoming in the immediate future.
Recommendation: That Crime Records Division begin preparing an ap-
propriate speech for use by INIr. Gray on August 11, 1972.
J. B. Robinson Co.,
Cleveland, Ohio, June 28, 1972.
L. Patrick Gray III,
Acting Director, Federal Bureau of Investigation,
Department of Justice, Washington, D.C.
Dear Director Gray: Thank you for agreeing to speak at the Citv Club of
Cleveland on August 11, 1972!
Patrick E. O'DonneU has been enormously helpful to us and we are writing at
his suggestion.
Our usual schedule is to have lunch at Noon, followed by a half hour talk
beginning at 12:30 p.m. Questions follow until we close at 1:30 p.m.
We will have an office available for your private use before and after j'our
presentation.
I wiU be in touch with your Assistant Director Bishop with additional detaUs.
We are looking forward to the privUege of having you here.
Sincerely yours,
Larry Robinson.
The City Club,
Cleveland, Ohio, July 7, 1972.
L. Patrick Gray III,
Acting Director, Federal Bureau of Investigation,
Department of Justice, Washington, D.C.
Dear Director Gray: We are very pleased that you have accepted our invita-
tion to speak at our Forum on Friday, August 11. As you may know this Forum
has brought many weU known people to Cleveland and raised many crucial issues
in the past. Many of our speakers have used this opportunity for a major policy
statement.
The Forum is carried live by one radio station (WCLV) and rebroadcasted in
its entirety by four others. We also get full TV and press coverage.
We begin with lunch at noon, go on the air at 12:30 with jour speech, and
close with a half hour of questions till 1 :30. Please plan your presentation to last
25-30 minutes.
WiU you please send us some biographical materials and the topic of your
speech so that we may give j'our coming adequate publicity.
Thanks again for planning to be with us on June 16. We look forward to seeing
iou then.
Sincerely yours,
Alan Davis, Executive Director.
July 12, 1972.
Larry Robinson,
./. B. Robinson Co.,
Cleveland, Ohio.
Dear Mr. Robinson: Assistant Director Bishop has advised me of your very
kind offer of cooperation in regard to my forthcoming trip to your city and you
may be sure I deeply appreciate your gracious hospitalitJ^
Thank you for oflfering to meet me at the airport, but this will be unnecessary
since I previously made arrangements for transportation from there to the Cit.v
Club of Cleveland. Mr. Bishop or a representative from our local office in Cleveland
will be in contact with you prior to my speech concerning any additional details
relative to my visit.
With best wishes and warm respect,
Sincerely yours,
L. Patrick Gray III, Acting Director.
106
July 13, 1972.
Alan Davis,
Executive Director, The City Club,
Cleveland, Ohio.
Dear Mr. Davis: I received j'oiir letter of July 7th and am certainly looking
forward to being with you at your Forum on August 11.
In regard to your request, I am enclosing a copj- of my biographical sketch and
my photograph which you may use as indicated in your letter. A representative
from my office will be in contact with you concerning the topic of mj- address.
With best wishes and warm respect,
Sincerely yours,
L . Patrick Gray III, Acting Director.
September 4, 1969.
Frederick A. Vierow,
Executive Secretary, The City Club,
Cleveland, Ohio.
Dear Mr. Vierow: On September 2nd I received your letter inviting me to
address your Club's Forum in Cleveland on one of the dates indicated in January
or February, 1970.
While I appreciate the kind invitation, the pressure of my official schedule,
coupled with the numerous matters which arise daily demanding my immediate
attention, precludes my accepting additional commitments. However, one of my
assistants would be pleased to make this appearance and if this arrangement is
satisfactory with you, please advise me and I will be happy to designate someone.
Sincerely yours,
J. Edgar Hoover.
Note: Bufiles disclose on 8-20-68 Vierow invited Director to address this
Forum on September 20th or 27th, 1968. By outgoing 8-27-68, invitation w-as
declined. The Director has received several invitations in past to speak before
The City Club which have been declined. This Forum and group appears to be a
good one and as indicated, will have rather extensive radio coverage. It is definitely
felt the Bureau would benefit by aflfording a sjjeaker and would offer an e.xcellent
opportunity to explain first hand our jurisdiction and responsibilities. Assistant
Director Bishop has indicated he could handle this appearance on any of the
dates in February, 1970.
Senator Byrd. Veiy well.
Reference has also been made to your speech in Butte, Mont. It
may be a little repetitious, but I was not able to be here throughout
the entire hearing, and I felt, Mr. Gray, that — and you supplied me
with a copy of this statement
Mr. Gray. Yes, sir.
Senator Byrd. You said you would do this the other day when we
\dsited with you, along with your other speeches.
Mr. Gray. That is correct, sir.
Senator Byrd. I find that this one in particular, however, sounded
like a political speech and not so much like a law-and-order speech.
It contained a good many statements' with which I could agree, and
I find no fault with the statements that were made therein per se.
You stated, for example:
The time has come to end this strident demagoguery and look at the facts about
America.
Let me ask you, what other nation in historj^ has even come close to the level
of assistance that the United States has given to enhance the economic well-being
and security of its neighbors around the world?
Since World War II the taxpayers of this country have provided approximately
$130 billion in loans and outright grants to other nations. This has gone not just
for our strongest and closest allies, but most especially to weak nations most
107
in need of it. We have given this aid hterally until it hurt — hurt our balance of
payments and our trade position with other countries.
IBut the critics who claim this is a selfish nation do not talk about that.
Another excerpt:
What other nation can and does channel resources so generously through
government programs to meet human needs? I refer to programs providing security
for the aged, help for disadvantaged children, support for the unemployed, and
other basic requirements for human life and dignity. This is done not just at one
level of government, but at the local, Federal, and State levels. To those who
claim that our national priorities are distorted away from the individual —
And there were a lot of Democrats claiming that last year —
I would point out the Federal outlays for supporting and developing human
resources such as those I have described continue to increase year after year, and
that in the current Fiscal Year 4.5 percent of the Federal budget is for human
resources and onlj- 32 percent for national defense.
But the calamity howlers here who say the little man is forgotten do not talk
about that.
Another excerpt deals with the amount of moneys that are being
provided by all levels of government for public, elementary, and sec-
ondary schools. And then the statement follows:
But those who charge that this is a society of special privilege do not talk about
all of that.
Then at the end, relatively close to the end, this quote:
Your government is doing everything possible to fight drug abuse, which
President Nixon has labeled America's public enemy number 1 .
Well, I could subscribe to most of that. As a matter of fact, I made
some political speeches along the same line. My problem comes,
though, in reconciling this kind of sj^eech made by the Acting Direc-
tor of the most effective law enforcement agency in the world, hav-
ing jurisdiction of the most comprehensive and most effective intel-
ligence gathering network in the world, this kind of statement made
in the course of a campaign dated Se])tember 7, 1972, by such an
officer. I think it ^^ ould have to be considered political by almost any
objective reader of it and certainly by myself — someone who agrees
with most of what is being said and who has stated the same thing in
many of my i)olitical s])eeches. But I am a politician, and I have to
run for office. I have to be elected and reelected. The Acting Director
of the FBI is not a pohtician. It seems to me he should avoid the
appearance of pohtics. Whatever else could be said about Mr. Hoover,
it could not be said that his agency \n as politically oriented or that
he made political speeches during a campaign.
I understand that a^ou take the ^-iewpoint that this was not a
political si)eech. You are entitled to your opinion of that, but I would
just have to also be entitled to mine.
Mr. Gray. Senator, Byrd, may I ask were you reading from the
Butte, Mont., speech?
Senator Byrd. Yes, I thought I was. Yes, Butte, Mont., Sej^ember
7, 1972. And if this has not been placed in the record, I would like for
it to be included in the record.
The Chairman. It will be admitted.
108
(Mr. Gray subsequently submitted the following document for the
record :)
U.S. Department of Justice,
Federal Bureau of Investigation,
Washington, B.C., September 7, 1972.
"A Nation That Cares" — An Address by the Honorable L. Patrick Gray
III, Acting Director, Federal Bureau of Investigation
As a fellow Rotarian, I welcome this opportunity to be your guest this evening'
We in the FBI deeply appreciate the splendid cooperation which you, as
Rotarians and citizens of this great city and State, have given us over the years.
This evening I want to talk about A Nation That Cares, a Nation which is
concerned about its citizens, their welfare, their happiness, their dignity as human
beings.
In our 20th century world these are among the salient questions facing mankind:
What kind of society do we want?
What kind of country is America going to become?
Does our Government care about our people? Does it listen?
Is it a sensitive society, wanting to make life more significant and meaning-
ful for every man, woman, and child?
These are questions which strike to the very heart of our American way of life.
They are questions about which we must take a stand if we are to face the future
with confidence and courage.
I believe that Americans know what it means to care.
We care enough to do our ver}^ best.
We care deeply about our community, our fellow man, our Nation.
We realize that unless people care — about themselves, about others, about their
values and traditions — our country will die.
This is whj^ America is today a great and respected Nation.
This is why human dignity and equality have achieved unparalleled heights
under our democratic system of government.
How important the whole concept of service is to the survival of civilization is
pointed out — very succinctly — in these words by a prominent educator:
"I do not believe," says this educator, "the greatest threat to our future is from
bombs or guided missiles. I don't think our civilization will die that way. I think
it will die when we no longer care."
Unfortunately, there are today a small minority of Americans— not many but
a few — who bitterly and falsely denounce our country as cruel, sick, callous, and
repressive.
They want to create the impression that our Government is an ogre, a monster
which simply doesn't care.
Another prominent educator has publich^ denounced our national leaders as
not giving — in his words — "any clear sign of compassion or concern for the poor,
the weak, the sick, the unemployed, the helpless. . . ."
Another speaks of a "selfish and oblivious ruling Establishment."
An author asks, "Is America Falling Apart?" and then categorically states,
"The American Constitution is out of date."
The law enforcement profession finds itself constantly attacked by extremists.
We are called "pigs." We are accused of repressing the rights of citizens. Every
opportunity is seized to portray our police, our courts, our judicial system as cold,
insensitive, unfair, and bigoted.
This is extremist rhetoric. This is inflammable rhetoric that does nothing to
enlighten or to contribute to our society.
It is not based on facts.
It deals in overkill, emotion, and flamboyance.
It seeks to set group against group, citizen against citizen.
The objective of extremist rhetoric is to create the totally false impression that
our political processes — local, state, and Federal — are insensitive and cruel, not
responsive to the needs of the day.
These detractors aim not at reform of our institutions, but at their destruction.
In my opinion the vast majority of Americans are becoming tired of this quack-
ing chorus of pessimism, cynicism, and lack of faith.
The time has come to end this strident demagoguerj^ and look at the facts about
America.
Let me ask j'ou, what other nation in history has even come close to the level of
assistance that the United States has given to enhance the economic well-being
and security of its neighbors around the world?
109
Since World War II the taxpayers of this countrj^ have provided approximately
$130 billion in loans and outright grants to other nations. This has gone not just
to our strongest and closest allies, but most especially to weaker nations most in
need of it. We have given this aid hterally until it hurt — hurt our balance of
payments and our trade position with other countries.
But the critics who claim this is a selfish Nation do not talk much about that.
Again, what other country has found a means to send people of ability and
dedication to help emerging nations around the world in their efforts to elevate
their way of life, without asking anything whatsoever in return?
The critics who say we are a crass and ungenerous people do not talk much
about that.
What other people supports anywhere near the variety of charitable causes
and contributes anywhere near the proportion of its resources for such causes?
I refer to approximately $20 billion per year in private contributions to health,
welfare, educational, and religious institutions. And this does not include the
millions of man-hours and woman-hours contributed in the form of personal
skills and service to these causes by devoted individuals.
But the doomsayers who call ours a decadent societj' do not talk much about
that.
What other nation can and does channel resources so generously through
government programs to meet human needs? I refer to programs providing security
for the aged, help for disadvantaged children, support for the unemployed, and
other basic requirements for human life and dignity. This is done not just at one
level of government, but at the local, Federal, and State levels. To those who
claim that our national priorities are distorted away from the individual, I would
point out that the Federal outlays for supporting and developing human resources
such as those I have described continue to increase year after year, and that in
the current Fiscal Year 45 percent of the Federal Budget is for human resources
and only 32 percent for national defense.
But the calamity-howlers who say that the little man is forgotten do not
talk about it.
America is NOT a selfish, unconcerned society that does not care.
Perhaps no society in all of history has been more interested in the personal
well-being of its citizens, in human concerns, in giving aid to the unfortunate
both within and beyond its boundaries.
I like the quotation attributed to Lowell Thomas, the famous radio com-
mentator and world traveler: "He who allows a day to pass without practicing
generosity . . .," he said, "is like a blacksmith's bellows — he breathes but does
not live."
This is the spirit of A NATION THAT CARES.
In our democratic society, however, the concept of service takes on a dimension
beyond material assistance.
Its greater gift is to provide a cUmate of freedom in which every individual
may pursue his own hopes, dreams and aspirations, and may work out his own
destiny as a human being.
This means a commitment to equal treatment, equal justice, and equal
opportunity for every citizen of these United States.
What other nation has devoted as large a share of its energies and resources
to assuring an education for every American until he or she reaches adulthood?
I refer not only to the some $40 billion provided by all levels of government for
public elementary and secondary schools. I am also speaking of the vast and
growing public funds for higher education and the objective, already reached in
some states, of providing a higher education to every young person who wants it.
And I am referring to the huge individual and corporate contribution to private
education at all levels and to free public libraries throughout the country.
But those who charge that this is a society of special privilege do not talk about
all of that.
What other country has made such a determined effort to combat discrimina-
tion and assure equal opportunity for all persons regardless of race, color, or
religion? This crusade is succeeding because Americans and their elected officials
do care about the rights of others. At the Federal level, the resouces and the
successes in this field continue to rise, and today there is more legal action
against alleged civil rights violators than ever before.
But those who claim that Americans are full of hatred and discrimination do
not talk about all that.
91-331 — 73-
no
FinaUy, the gift of individual freedom and equal opportunity that we enjoy
derives primarily from the free government that we have maintained for two
centuries. By that T mean a government in which the individual is protected in
his freedoms and his personal goals by laws that he or his representative helped to
make. Contrarj^ to tlae opinion of some, law Is not the enemy of freedom. Law
guarantees freedom against invasion l:-y others.
We in the FBI and in the law enf(H-cement agencies of our country are proud
of the part we are playing to make more secure .your rights, your lives, and your
property.
Today there is every indication that the upward thrust of crime is being con-
siderably slowed.
During the first quarter of 1972, crime registered its smallest increase — one
percent — in 11 years. This gives us hope that very shortly crime will reflect an
absolute decline — and that this tide of lawlessness which for so long has beset
our people will recede.
Eighty of our largest cities reported actual decreases in crime for this three-
month period — compared with 22 cities in 1970, and 59 in 1971.
In Fiscal Year 1972, the FBI's drive against organized crime hit an all-time
high with a continuing series of major gambling raids, and the conviction of more
than 750 racket figures, including some of the country's ranking syndicate leaders.
Much hard work remains ahead. Organized crime is a tenacious and costly
social malady. But effective law enforcement, utilizing the latest techniques of
crime detection, is making more difficult the position of the hoodlum mobs.
The tide is also turning in favor of the American people in the area of narcotics.
In 1971, Federal Agents removed five times as much heroin and equivalent
opium derivatives from the world market as in the year 1968.
The United States for the first time has won the genuine cooperation of foreign
countries which have been sources of narcotics, and they are clamping down on
the traffic.
Your Government is doing everything possible to fight drug abuse, which
President Nixon has labeled, "America's public enemy number 1."
The role of the law enforcement profession in helping create A NATION
THAT CARES is absolutely vital.
My command of the English language does not enable me to express my indig-
nation when I hear police officers called "pigs."
The vast majority of men and women in our profession are honorable people
conscientiously devoting their lives to a vital public service.
They are often underpaid and overworked.
They daily risk their lives that you — and millions of other Americans-^might
enjoy the liberties of this land.
To equate the law enforcement profession with repression, to sanctimoniously
accuse the FBI and local police and our whole judicial system f)f eroding the
liberties of the people, is to completely misunderstand the positive role they play
in our society.
As Acting Director of the FBI, in meeting police officers of all ranks, I have
been deeply impressed by their honesty, their integrity, and especially their com-
passion as human beings.
I always think of the picture of the police officer bending over a child who
has been badly injured, blowing the breath of life from his own body into the
mouth of that .voungster.
Ours is a profession of service. Its members are in it because thej^ care about
their city, their state, their Nation, and they care about the people in them. They
give from their own strength, knowledge, and dedication so that others might
live in safety and freedom.
That is why our Rotarian motto — SERVICE — reflects the spirit of America
and why it has so much to say to Americans.
"You must give some time to your fellow man," said Albert Schweitzer, the
famous author, philosopher, and physician. "Even if it's a little thing, do some-
thing for those who have need of a man's help, something for which you get n
pay but the privilege of doing it."
Today, more than ever, this moral imperative influences the American people.
It characterizes our Nation far more than the passing shortcomings that are
magnified by the professional critics. It is what continues to make the United
States not only a Nation but a state of mind — a state of mind that cares about
others and still lights the lamp of hojje in a troubled wt)rld.
Ill
Senator Byrd. Was I not reading from it?
Mr. Gray. 1 do not know. 1 cannot find it in the Butte, Mont.,
speech unless 1 have niy cover page of the speech mixed up or unless 1
gave you a different cover page. We will check it later.
Senator Byrd. All right.
Now, as to the request from the Wliite House for election year
political advice on criminal justice issues, this was forwarded to the
FBI field offices, as 1 understand.
Mr. Gray. Is that the Cleveland City Club speech?
Senator Byrd. No.
Mr. Gray. You are talking about the criminal justice items that
came in a memorandum from Geoft" Shepard?
Senator Byrd. This request came from Mr. Sheppard. And it
requested mformation to be used m 15 specified States. It was a
memorandum entitled "Information for Campaign Trips," and I
believe you indicated earlier that this matter was handled by your
executive assistant, Mr. Kinley.
Mr. Gray. I did not say it was handled by him. It was a piece of
paper when it came to my office, the Office of Acting Director, came
through the routing system, came to Mr. Kinley's clesk. Mr. Kinley
marked it for the Assistant Director in charge of the Crime
Research Division and it was handled that way.
Senator Byrd. WTiere were you at the time?
Mr. Gray. I had embarked on a field office visit to Anchorage,
Alaska, to Seattle, Wash., to Portland, Greg., to do a speech in
Spokane at the Washington State Bar Association and then into Butte,
Mont., and I was in Butte, Mont., when this request- — either in Butte,
Mont., or in the air — when this request was received at mj' office on
Friday.
Senator Byrd. You indicated, I believe earlier, that you hit the
overhead, was it, or the ceiling or words to that effect?
Mr. Gray. Yes, sir.
Senator By'^rd. What action did you take?
Mr. Gray. Well, part of the action that I took was to abolish the
Crime Research Division and transfer its functions throughout the
Federal Bureau of Investigation, including the transfer of press rela-
tions and the congressional service unit to m}^ office. That was not
the only reason that I abolished the Crime Research Division. There
were other reasons.
Senator Byrd. I was just going to ask, what would press relations or
congressional relations have to do with a decision in regard to a Wliite
House request to get information from various field offices?
Mr. Gray. Because that was the Division within the Federal Bureau
of Investigation that normally handled such requests.
Senator Byrd. What action was taken against any persons in con-
nection therewith?
Mr. Gray. No punitive action was taken against any persons,
Senator.
Senator Byrd. Was Mr. Thomas E. Bishop retired or reassigned?
Mr. Gray. No; he was offered a position as SAC, special agent in
charge of a field office.
Senator Byrd. Was this the result of the memorandum that came
from the White House?
112
Mr. Gray. No; because I was going to abolish the Crime Research
Division anyhow as a result of a management survey. However, rather
than giving him nothing, I offered him a position. He knew he could
have the job as special agent in charge of a field office.
Senator Byrd. When j^ou hit the ceilmg, Mr. GT&y, did you rebuke
Mr. Kinley or Mr. Felt?
Mr. Gray. Yes; I did.
Senator Byrd. Were there any other such requests that have not
yet been publicly exposed ?
Mr. Gray. I know of none. There may be some hidden in the wood-
work or Claymore Mines. I have found this to be the case from time
to time, Senator, in trying to dig out man}^ things, Senator, but I
know of none at the moment.
Senator Byrd. Would you not know of them if they had been made,
such requests?
Mr. Gray. I thought you were talking of some that were lying
around there. No, I know of none. I thought you were talking about
some action that was going to occur in the future.
Senator Byrd. I was wondering whether any similar requests from
the White House for information to be used in the campaign had been
made that had not been exposed.
Mr. Gray. No, Senator.
Senator Byrd. Did 3^ou travel by commercial planes during the
campaign?
Mr. Gray. No, sir ; I traveled b}^ U.S. Air Force aircraft. I was not
traveling during the campaign. I was traveling on my own as Acting
Director of the Federal Bureau of Investigation. As I explained
earlier. Senator Byrd, this was a part of the way in which I chose to
bring the FBI's message to the people of the United States, and I
have felt, whether rightly or wrongly, but it is my opinion, that the
dedicated men and women of the FBI were maligned too much and
it was time to open the window and — — ■
Senator Byrd. Travel primarily b}^ commercial plane?
Mr. Gray. No, U.S. Air Force aircraft. I did make one trip to San
Diego on United Airlines.
Senator Byrd. Why did you travel by U.S. Air Force?
Mr. Gray. I figure I have too much information in my head and it
could be extracted very easily by anyone who might hijack an air-
craft. To have the Acting Director of the Federal Bureau of Investiga-
tion in your hands and subject to the kind of sophisticated treatment
today that can be given to extract information was rather dangerous.
Senator Byrd. Do you know whether or not the Attorney General
travels by commercial plane?
Mr. Gray. He does not.
Senator Byrd. He does not travel by commercial plane?
Mr. Gray. I am sorry, sir. He does. I am sorry.
Senator Byrd. Does the Air Force bill the FBI for the use of its
jets?
Mr. Gray. Yes, it does bill us and we do pay for it. I might add,
Senator, in response to your earher question, that the Attorney General
does not have the information in his head securitywise in detail and
in depth that I have.
Senator Byrd. You indicated earlier that the Watergate break-in
occurred on June 17. Did the FBI tell Mr. Ehrlichman on that day
that Mr. Hunt was involved?
113
Mr. Gray. I do not know whether the FBI reported on that day to
Mr. EhrHchman that Mr. Hunt was involved. I will have to furnish
that information for the record. I know that probably such information
was furnished but as to the exact time I will have to determine that,
Senator.
(Mr. Graj^ subsequently submitted the following document for the
record) :
Mr. Gray. Upon checking the record, I find that the FBI did not inform
Mr. EhrUchman that Mr. Hunt was involved. However, late in the afternoon of
June 17, 1972, Mr. Alexander P. Butterfield, Deputy Assistant to the President,
was contacted b.y the Washington Field Office to ascertain what connection Mr.
Hunt had with the White House.
Senator Byrd. You indicated that you learned of the Watergate
incident in California on June 17 by your field office; do you know
who contacted the field office from the Washington office?
Mr. Gray. I do not know the individual. I know that between
9:30 and 10 a.m., Pacific daylight time, which was 12:.30 p.m., 1 p.m.,
Washington time, SAC Kunkel of the Washington field office, on
instructions from Mr. Felt, FBI headquarters, called the Los Angeles
field office and furnished them information concerning the Watergate
incident for immediate relay to me.
Senator Byrd. Who in the field office contacted you?
Mr. Gray. I was not contacted in the field office because I was in
the automobile on the way to Santa Ana, Calif., to make
Senator Byrd. W^ere you contacted b}^ Mr. Kunkel?
Mr. Gray. No, sir; I was not. The information was passed to me
by the resident agent at Santa Ana, Calif., where I was to deliver
the commencement address at the law school at Pepperdine Univer-
sity. He was instructed to contact me and to alert me as to the Water-
gate incident.
Senator Byrd. Did you know of Mr. Hunt's involvement at that
time?
Mr. Gray. No, I did not. All I knew at that time was that someone
was involved and we did not know the names.
Senator Byrd. When did you know of Mr. McCord's involvement?
Mr. Gray. 3:45 p.m., Pacific daA^light time, I was advised that he
had been identified as an ex-FBI agent and security officer of the
Committee To Reelect the President.
Senator Byrd. Mr. Ehrlichman was reported to have been looking
for Mr. Hunt on the 17th. Do you know why?
Mr. Gray. No, sir; I do not.
Senator Byrd. In view of the fact that the FBI entered the case
on the 17th, would it not be proper to assume that the FBI told
Mr. Ehrlichman that Mr. Hunt was involved?
Mr. Gray. No, it would not be proper to assume that, Senator,
because I gave instruction very earh' when I first talked with Mr. Felt,
and I must make sure when that was. The instructions I gave to
Mr. Felt were to hold this very, very, verA' closely, and that I
think was probably late in the afternoon on the 17th or early on the
18th. But I have no reason to believe that the FBI would have made
any notification to anj^body without notif3dng me first. They just do
not operate that way.
Senator Byrd. Mr. Ehrlichman was reported to have said, "We get
a routine notification." Does that mean they would get a routine
notification from the FBI if a White House staffer was in trouble?
114
Mr. Gray. No; I am going to have to look into that for you. I
cannot answer that question under oath. I am going to have to look
into that. I just do not know that information that specifically. But
I will find out and I will furnish it for the record.
(Mr. Gray subsequently submitted the following document for the
record :)
I find, Senator Byrd, upon checking the record, that when the FBI receives an
allegation of a criminal nature against an employee in the Executive Branch, as
a matter of routine, a senior oflScial of that agency is advised. This includes the
White House.
Senator Byrd. Can you inform the committee as to who first con-
tacted the White House on the 17th?
Mr. Gray. On the 17th, assuming — I will inform you, Senator
Byrd, and the members of the committee, who first contacted the
White House and when and what they told them.
Senator Byrd. And who was contacted at the White House.
Mr. Gray. Right; I will inform the committee.
(Mr. Gray subsequently submitted the followmg document for the
record :)
Senator Byrd, upon checking the record, I find that Supervisor John Ruhl of
the Washington Field Office telephonically contacted Mr. Alexander P. Butter-
field, Deputy Assistant to the President, between 6:00 and 7:00 pm, June 17,
1972, to determine Mr. Hunt's affiliation with the White House and to inform
the White House that Mr. Hunt maj' be involved in this matter which was being
investigated by the FBI. This was the first contact by the FBI with the White
House concerning this matter.
Senator Byrd. Why did the FBI not look for Mr. Hunt until the
19th?
Mr. Gray. I think we interviewed Mr. Hunt on the evening of the
17th, if my recollection is correct, and I will check that in the summary
to make sure and if I am in error I will correct it. I think I am correct
in stating that we interviewed him on the 17th.
(Mr. Gray subsequently submitted the following document for the
record :)
Upon checking the record I find that at approximately 5:30 p.m., June 17,
1972, the Washington Field Office telephonically contacted Mr. Hunt to request
an interview with him. He agreed and shortly thereafter was contacted at his
home by two Special Agents.
Senator Byrd. You interviewed
Mr. Gray. That evening.
Senator Byrd. You interviewed Mr. Hunt on that evening?
Mr. Gray. Yes; he was not doing very much talking.
Senator Byrd, Mr. Ehrlichman was having a little trouble finding
him.
Mr. Gray. I do not know that Senator. I do not know that Mr.
Ehrlichman was looking for him.
Senator Byrd. According to the press reports, I believe. Wlio
ordered the FBI into the case?
Mr. Gray. I do not think anybod}^ ordered the FBI into the case.
When I was fu"st advised of it m}' first question was, Do we have juris-
diction? Actually, our first reports w^ere that it was a burglary. Then
we thought a bombing incident was involved because one of the instru-
ments picked up there, a smoke detector, did have a couple of, I think
they were, batteries in it and it was thought that this was a bomb. In
115
fact, from the first reports our SAC in Washington field ofBce desig-
nated a burglar}^ specialist to be tlie case agent. Then as soon as we
saw the de^dces we knew we were involved with an IOC, a violation
of the intercepted communications statute so we went right into it.
Otherwise we would have deferred to the metropolitan police depart-
ment on either the burglary or the bomb, but it was later on, about
mid-day, that the U.S. attorney and the Assistant Attorney General
of the Criminal Division confirmed that we should have jurisdiction of
this case.
Senator Byrd. AVere you asked by the Wliite House to get into
the case?
Mr. Gray. I had no instructions from the Wliite House, sir.
Senator Byrd. And you got no request?
Mr. Gray. No, sir.
Senator Byrd. To what extent were you aware of the details of
the Watergate investigation as it was progressing?
Mr. Gray. To what extent was I aware of what, sir?
Senator Byrd. To what extent were you aware of the details of
the Watergate investigation as it progressed?
Mr. Gray. Well, in my position as Acting Director, I certainly was
aware of it because the teletypes would come across my desk. I had
met early in the game with the top people who were involved in the
investigation, gave them the instructions to press it aggressively,
give it a full court press, in the language of the FBI, saw these tele-
types as they would come across my desk, discuss the case with them,
but as you know, in the FBI when a'ou get hit with a major spe<ial
like this, the case agent and the agents working the case with him
agree and confer and determine the leads that are to be sent out. Those
leads are reviewed by the field supervisors and by their SAC and at
the same time they are in close touch with the Bureau supervisor.
These leads are going out and the organization is really cranking up the
speed rather rapidly through the teletype circuit. I will be happy
to submit for the record the general instructions that went out in-
dicating that this was to be an investigation aggressively conducted
and pursued, taken under the wing of each special agent in charge,
and as many special agents utilized as necessary in order to promptly
and effectively investigate this case.
(Mr. Gray subsequently submitted the following document for the
record:)
Senator Byrd, I find upon checking our records that on June 17, 1972, when
this case broke. Special Agent in Charge Kunkel was telephonically advised by the
extra-duty supervisor of the General Investigative Division, of Assistant Director
Bates' instructions that Mr. Kunkel must personally insure this case receives top
priority handUng bj^ as manj^ Special Agents as are necessary. He was instructed
as leads developed in other offices, similar telephonic instructions were to be given
to the field and if coverage of the leads turned up additional leads in another
office, these instructions of FBI Headquarters relative to the handling of this
case were to be passed on. The telephonic instructions were subsequently confirmed
in writing by FBI Headquarters and I am submitting the following document
for the record (the document is a Personal Attention airtel dated June 20, 1972,
to Special Agents in Charge Washington Field Ofhce, Atlanta, Alexandria, Balti-
more, Boston, Kansas Citj% Houston, Miami, New York and Philadelphia). The
first paragraph of this airtel appears pertinent to j'our request, Senator Byrd,
and I will quote it for the record as follows:
116
"This will confirm instructions to appropriate offices that all logical investiga-
tion is to receive immediate attention under the personal direction of SACs by
as many SAs as are needed to insure absolute, thorough, immediate, imaginative
investigation is conducted in this case. All leads are to be set out by telephone or
teletype as appropriate. Bureau is to be aware of all leads."
I am also submitting for the record a copy of a memorandum C. Bolz to Mr.
Bates dated 9/12/72, concerning instructions issued by FBIHQ to the various
FBI field offices, relay of FBIHQ instructions to other field offices, scope of in-
vestigation and certain statistical data concerning Agents assigned and man-
hours used in the investigation of this case, together wath enclosures.
AlRTEL
PERSONAL ATTENTION fi/20/72
To: SACs Washington Field; Atlanta, Alexandria, Baltimore, Boston, Kansas
Citv, Houston, Miami, New York, and Philadelphia.
From: Acting Director, FBI (139-4089).
James Walter McCord, Jr.; Bernard L. Barker, et al., Burglary of Demo-
cratic Party National Headquarters, 6/17/72, Interception of Communica-
tions, and Co: WFO.
This will confirm instructions to appropriate offices that all logical investiga-
tion is to receive immediate attention under the personal direction of SACs by
as many SAs as are needed to insure absolute thorough, immediate, imaginative
investigation is conducted in this case. All leads are to be set out by telephone or
teletj'pe as ajjpropriate. Bureau is to be aware of all leads.
Philadelphia and Miami are instructed to expend all efforts necessary to trace
the $100 bills recovered from the subjects.
^liami is to continue developing complete background on all subjects and
individuals involved who appear to have been in the Washington, D.C., area for
purjioses related to captioned burglary.
WFO discuss with the USA the possibility of obtaining a search warrant for
search of McCord's apartment in the Miami area.
?.liami and WFO are to obtain all available information concerning the bank
accoimts, as well as toll telephone calls, of the subjects and other individuals who
apjiear to be involved in this case including Everette Howard Hunt, Jr.
WFO is instructed to continue submission of a daily teletype summary of the
highlights of investigation.
To: Mr. Bates
From: C. Bolz
James Walter McCord, Jr., Et Al.;
Burglary of Democratic Partj^,
National Headquarters,
June 17, 1972,
Interception of Communications.
The following is furnished in partial response to Mr. Felt's memorandum of
September 11, 1972, wherein he requested certain statistical information showing
the scope of this investigation.
Instructions Issued by FBIHQ
On Saturday, June 17, 1972, when this case broke, SAC, Washington Field,
was telephonically advised by the extra-duty supervisor of the General Investi-
gative Division, of Assistant Director Bates' instructions that SAC must per-
sonall}' insure this case receives top priority handling by as many Special Agents
as are' necessary. As leads developed in other offices, similar telephonic instructions
were given to the field offices involved and further that if coverage of a lead
turned up additional leads in another office, the Bureau's instructions relative
to handling were to be passed on. The telephonic instructions were subsequently
confirmed in writing as sho-ma below.
By Personal Attention airtel dated June 20, 1972, to SACs, Washington Field
Office, Atlanta, Alexandria, Baltimore, Boston, Kansas City, Houston, Miami,
New York and Philadelphia, the following general instructions were set forth
by FBIHQ:
117
"This will confirm instructions to appropriate offices that all logical investi-
gation is to receive immediate attention under the personal direction of SACs
by as many SAs as are needed to insure absolute, thorough, immediate, imagi-
native investigation is conducted in this case. All leads are to be set out by tele-
phone or teletype as appropriate. Bureau is to be aware of all leads."
While the general instructions did not state that if necessary, manpower must
be diverted from other areas, it is noted that Washington Field did, in fact,
divert manpower to this case from other investigative areas to insure immediate
handling of leads.
In addition to the above general instructions, the June 20, 1972, airtel specifi-
cally instructed Philadelphia and Miami to expend all efforts necessary to trace
the $100 bills recovered from the subjects. By teletype dated June 20, 1972,
FBIHQ instructed Washington Field. Miami and Philadelphia that investigation
to identify money recovered from the subjects at the time of arrests must be
pressed vigoroush^ The observation was made that it is most important that
every effort be made to identif.y the eventual recipient of those funds.
By teletype dated June 20, 1972, to Miami, New York, Newark, Tampa, San
Juan and Washington Field, it was emphasized that Bureau is conducting vig-
orous investigation to develop an Interception of Communications violation and
to determine the reasons for this activity as well as other individuals who may
be involved. These offices, which handle practically all high-level informants
relative to Cuban matters, were instructed to immediately contact sources
knowledgeable concerning Cuban activities to develop whatever information
was available concerning the subjects, their associates and possible motives for
the burglary.
By airtel dated June 22, 1972, to SACs Washington Field Office, New Haven,
Miami, Kansas City and New York, the importance of this case was again em-
phasized in the following paragraph:
"It is again reiterated that all leads in this matter must be given the highest
priority with sufficient personnel assigned to insure maximum effort in covering
all leads."
Particular instructions in that airtel to New Haven were for that office to
intensify and expedite efforts to develop full background information concerning
Baldwin.
By teletj^pe dated June 23, 1972, SACs Washington Field, Albany, Albuquerque,
Alexandria, Atlanta. Baltimore, Birmingham, Boston, Charlotte, Chicago,
Cincinnati. Cleveland, Dallas, Denver, Houston, Jacksonville, Kansas City,
Los Angeles, Miami, Minneapolis, Newark, New Haven, New York City, Norfolk,
Philadelphia, Pittsburgh, Richmond, San Antonio, San Francisco, San Juan,
Springfield and Tampa, were instructed, among other things, the following:
"This case is to receive highest priority investigative attention."
Relay of FBIHQ instructions to other field offices
As investigation in this matter was requested of auxiliary offices not previoush''
in receipt of communications, the general FBIHQ instructions substantially
identical to the above were set out as sho«ii in the attached schedule of com-
munications requesting the investigation. In those instances wherein only a portion
of the language w"as used oi' the wording substantially differed from the original
general instructions, the specific language is set out.
An analysis of the teletj'pes and airtels discloses 50 of the .51 field offices which
conducted investigation were advised of the general instructions in writing. The
Buffalo Office was orally advised of the general instructions by telephone on both
June 23, 1972 and June 24, 1972, during its efforts to locate and interview Kenneth
Dahlberg, which was the only uavestigation conducted by that office.
Field offices and legal attaches involved in the investigation
As of September 8, 1972, 51 of our field offices and four Legal Attaches conducted
investigation in this case. The latter included Mexico Citj^, Ottawa, Caracas and
Bonn.
Agents assigned and man-hours used
For the period from inception of the investigation on June 17, 1972, through
close of business September 8, 1972, 333 Agents have been assigned to work on this
case. For the same period, 14,098 man-hours have been utilized in this investigation.
With respect to the scope of communications submitted in this case, as of
September 8, 1972, there have been 130 investigative reports totaling approx-
imately 3,500 pages submitted. These reports have been disseminated to Assistant
Attorney General Henry Petersen, Criminal Division, and to the U.S. Attorney,
118
Washington, D.C. There have been approximatelj- 750 teletvpes and airtels
received by FBIHQ concerning this case as of September 8, 1972.
ACTION: This is for information. The field has been instructed to submit by close
of business September 12, 1972, information as to the number of leads which have
been covered, the total number of persons who have been interviewed and the
total number of persons who have been reinterviewed. That information will be
submitted by separate memorandum as soon as it is received.
FIELD RELAY OF INSTRUCTIONS
Date and time
To
From
Instructions
June23, 1972, 10:40 a.m.
June 23, 1972, 1 p.m.
June 23, 1972,1:58 p.m.
June 24, 1972,3:50 a.m..
June24, 1972, 9:22 a.m..
June 24, 1972, 2:20 p.m..
June24, 1972, 8:46 p.m..
Bureau and SAC's, Albany, Alexan-
dria, Baltimore, Birmingham,
Boston, Chicago, Cincinnati, Dallas,
Denver, Houston, Los Angeles,
Miami, Minneapolis, Newark, New
Haven, New Yorl<, Norfoll<,
Philadelphia, Richmond, San
Antonio, San Francisco, Springfield,
and Tampa.
Bureau and SAC's, Miami, and
Norfolk.
Bureau and SAC's, Buffalo, and
Washington Field.
Washington
Field.
General instructions.
do...
Miami.
and
Bureau and SAC's, St. Louis,
Washington Field.
Bureau and SAC's, San Juan, Chicago, ...
Louisville, and Washington Field.
Bureau and SAC's, Washington Field, St
Miami, and Kansas City.
Bureau and Tampa Miami
.-do...
..do...
. Louis.
June 27, 1972, 1:10 p.m
June27, 1972, 4:09p.m
June28, 1972, 8:38 p.m
June 30, 1972, 6:32 p.m
June 30, 1972, airtelegram..
Bureau and SAC's Buffalo, Detroit, Washington
Las Vegas, Phoenix, and St. Louis. Fiald.
Bureau and SAC, Boston do.
July 1,1972,4:45 p.m...
July 5, 1972, airtelegram.
July 5, 1972,6:25 p.m...
July 11,1972,6:05 p.m..
July 14, 1=72,3:35 p.m.
Aug. 2, 1972, cablegram.
Bureau and SAC's, Washington
Field, Baltimore, Boston, Seattle.
Bureau and SAC's, Chicago, Detroit,
Los Angeies, Miami, Milwaukee,
and New York.
Bureau and SAC's, Albany, Albuquer-
que, Alexandria, Anchorage,
Atlanta, Baltimore, Boston, Butte,
Charlotte, Chicago, Cincinnati,
Cleveland, Columbia, Denver,
Detroit, Houston, Indianapolis,
Jackson, Jacksonville, Las Vegas,
Little Rock, Los Angeles, Miami,
Milwaukee, Newark, New Haven,
New York, Norfolk, Omaha,
Philadelphia, Phoenix, Pittsburgh,
Portland, Richmond, Seattle,
Salt Lake City, Springfield, and
Tampa.
Bureau and SAC's, Washington Field,
and Denver.
Bureau and SAC's Baltimore, Miami,
Boston, Norfolk, New York,
Washington Field.
Bureau and SAC's San Diego,
Washington Field.
Bureau and SAC's, Baltimore, Houston,
Louisville, Miami, and Oklahoma
City.
Bureau and SAC, Memphis
Legat, Mexico City
Miami.
Washington
Field.
do
. "All logical leads indicating
subjects have or had con-
tact in Washington, D.C.
area, Maryland and Virginia
being handled with tele-
types to other offices."
. "All leads to be handled
telephonically followed by
teletype."
. General instructions.
. General instructions.
. General instructions.
. "Bureau has requested im-
mediate coverage on all
leads in captioned matter."
". . . Bureau advised this
case is to receive highest
priority investigative at-
tention."
. "Boston is requested to
handle this lead as soon
as possible."
. General instructions.
General instructions.
General instructions.
Detroit
do
do
Washington
Field.
do
Bureau
General instructions.
General instructions.
General instructions.
General instructions.
General instructions.
"Daily summary cables need
not be submitted in future.
However, you should
continue to press remaining
investigation through
sources presently being
utilized and furnish results
by cablegram as soon as
received."
119
Senator Byrd. So you were kept completely informed as to details
as the case progressed?
Mr. Gray. No, 1 do not know that you can — that it is accurate
to use the word completely, because I was not doAMi in the nittA^
gritty and in the development of the leads.
Senator Byrd. But you were kept well Informed?
Mr. Gray. I was well informed, yes, sir.
Senator Byrd. Were you the decisionmaker as to the scope of the
investigation?
Mr. Gray. As to the scope?
Senator Byrd. Yes.
Mr. Gray. Of the investigation that it would be limited to the
IOC, to the violation of the criminal statutes involving mtercepted
communications?
Senator Byrd. As to the scope.
Mr. Gray. That is all we had, yes, sir.
Senator Byrd. And you made the decision?
Mr. Gray. Well, I "^ made it in conjunction with the Assistant
Attorney General of the Criminal Division, and U.S. attorney,
because anything they wanted us to investigate, we would investigate.
I would not say^ no, I am not gomg to investigate, but what we had
was a crimmal violation of the intercepted communications statutes
as the case developed. We did not know what we had initially, to be
very honest with you, Senator.
Senator Byrd. But it was your decision as to whether smy leads
would be follov. ed that might go higher up than the seven defendants?
Mr. Gray. I did not make any decisions on leads, and this is where
I do not write the leads. The case agents write the leads, they are
reviewed by the field supervisors, the Special Agent in Charge re-
views them, then they are reviewed over by the Bureau supervisors.
Senator Byrd. Who determines as to whether or not they would
be pursued further?
Mr. Gray. They are being pursued, you know, as soon as those
leads are sent out— the teletype goes out, Senator, and it is not a
question of where a decision is made. We added a lot of leads to
those that were being sent out by the office of origin, and by we, I
mean the office of the General Investigative D vision, and the chief
of the Accounting and Fraud Section who is in the General Investi-
gative Division.
Senator Byrd. Were you required to clear the scope of the investi-
gation through the Justice Department?
Mr. Gray. Yes, sir; we work with them verj' closely on that.
Senator Byrd. But were you required to clear the scope of the
investigation through the Justice Department, or was this a deter-
mination that 3'ou would make yourself?
Mr. Gray. No, I do not think it was a determination at all. I
could make a determination but I would have to investigate what the
Department of Justice told me to investigate, and I investigated
within our jurisdiction.
Senator Byrd. Who made the determination as to how far you would
go in the investigation and as to whether or not leads would be fol-
lowed which may have pointed to people in the White House?
120
Mr. Gray. Oh, we followed up on people in the White House, and
we mter\newed them, and I would be happy to submit to the com-
mittee and for the record, a list of the people interviewed at the
White House, at the Committee to Re-Elect the President, and the
dates on which they were interviewed.
(Mr. Gray subsequently submitted the following documents for
the record:)
INTERVIEWS OF WHITE HOUSE PEOPLE
Name Position Date of interview
White House personnel interviewed:
Charles W. Colson Special Counsel to the President... June 22, June 26, Au" 29
A, n r. .. r ,j r, . - Aug. 30, 1972.
Alex P. Butterfield Deputy Assistant to the President June 17 1972
Alfred Wong. Special Agent in Charge, Technical Security, U.S. June 22', June 27, 1972.
Secret Service.
Bruce Kehrii Staff Secretary to the President June 19, Aug 14 1972
James George Baker Protective Security Division U.S. Secret Service, Super- June 29, 1972. '
visory Security Specialist.
John Wesley Dean III.... Legal Counsel to the President .June27 July? July8 1972
Fred Fielding Assistant to the Legal Counsel to the President.. June 27, Aug. 30 1972
John James Caulfield ConsultanttotheDirectorof Treasury Law Enforcement June 26 1972
Kathleen Ann Chenow... Secretary to David Young.. July 3 1972
David Reginald Young Special Staff Assistant, National Security Councij July3'july7 Aug 30 197'
John D. Ehrlichman Assistant to the President tor Domestic Affairs July 21 1972'
Dwight L. Chapin Deputy Assistant to the President Aug 28 1972
Gordon Strachan Staff Assistant at the White House . " Do '
u,u- ^iJ''^'" ^- ^''^'"°"^ Assistant to the President for Congressional Relations... Sept. 8, 1972.
White House personnel contacted for the purpose indicated, though not interviewed:
Wilbur Jenkins Administrative Officer, White House (checked records Aug. 7, 1972.
for official travel of Hunt).
John Campbell Staff Assistant, Office of Domestic Council (made Do.
available travel voucher and related documents
concerning Liddy).
Margaret L. Beale Personnel Office, Office of IVIanagement and Budget Do.
Executive Office of the President (made available
copies of personnel action concerning Liddy).
James Rogers Personnel Office, White House Office (made available Do.
forms from Hunt's personnel hie).
Arthur Bauer Fiscal Service Officer, Office of Management and Bud- Aug. 10, 1972.
get. Executive Office of the President (made available
copy of official time and attendance records regarding
Liddy).
INTERVIEWS OF COMMITTEE TO REELECT THE PRESIDENT'S PERSONNEL
John N. Mitchell Campaign director July 5, 1972
Robert Mardian Special assistant to the campaign manager July 17, 1972
Jeb Stuart Magruder Deputy campaign director July 20, 1972.
Robert C. Odie, Jr Director of administration June 19, June 20, June 23
,, . ^, „, June28,June29,Julyn,1972.
Maurice Stans Chairman of the finance committee, CRP July 5, July 14 ttwice) July 28
1972.
Hugh Walter Sloan, Jr.. Former treasurer of the finance committee, CRP July 17, 1972.
Robert L. Houston Security coordinator . June 20, June 26, June 27
,,.,,. , .„ , ., July 3, July 13, July 17, 1972.
Millicent (Penny) Macey
..(^'eason.... Security officer.. June 30, July 1, July 2, 1972.
Martha Duncan Officer manager.. June 30, July 3, 1972
Herbert Lloyd Porter Director of scheduling _ July 19, 1972.
Fred LaRue... Special consultant to the campaign manager July 18,' July 21, 1972.
Paul E. Barrick... Treasurer, finance committee, CRP June 30 July 24 1972
DeVan L. Shumway.. Director of public affairs... July 24, 1972.
Powell A. Moore.. Director of press and information . . Do'
Glen J. Sedam, Jr General counsel. June 23, June 26, July 18,
Judith Graham Hoback Assistant to the treasurer, finance committee, CRP June 23, July 18, 1972.
Lee Nunn Finance chairman, finance committee, CRP. June 23, July 13 1972
Monico Bungato Messenger, mail service June 26 1972
Michael Terrence Masse Security officer ... June 30 1972
Stephen B. King Bodyguard for Mrs. Mitchell Do'
Tom Wince Driver for Mrs. Mitchell Do.
George Roger Houston Security guard Do
George Ellis Shanks.. do Do'
James William Bennett.. do. Do'
Timothy Michael Flynn do . " Do'
John W. Ernst do ./..... Do!
James Edward Cooper Security supervisor. ..^ Do!
Robert Houston .do " Do.
Stephen Tingley Anderson .. Security guard !!!!!!!!!!!!III Do!
Mrs. Sally Harmony Secretary to G. Gordon Liddy Do.
Kristin Forsberg Personal secretary to Mrs. Mitchell. ... Do.
Maureen C. Devlin Receptionist Do.
121
INTERVIEWS OF COMMITTEE TO REELECT THE PRESIDENT'S PERSONNEL— Continued
Name Position Date of interview
Sylvia Panarites Secretary July 3, 1972.
Michael Miller.. Man in charge of victory dinner June 30, 1972.
Peter Holmes.. Assistant to the treasurer Do.
Louis James Russell Investigator July 3, 1972.
Peter Fokine... Assistant of finance June 30, 1972.
Tyloe Washburn Assistant to the assistant treasurer Do.
Kenneth Talmage.. Aide to Maurice Stans Do.
Jane Dannenhauer Secretary. June 30, July 17, 1972.
Florence Thompson do June 30, July 17, 1972.
Margaret Kerwan... do Do.
Charles Pashayan, Jr Vice chairman on the finance committee Do.
V. Elaine Hall Special projects Do.
Gary Langhorne Washburn Do.
Ann Pinkerton Do.
Connie K. Cudd Staff secretary July 6, 1972.
Lewis Webster Creel Security guard July 12, July 13, 1972.
Ronald Charles Howard do... July 12, 1972.
Ronald Bruce Buchanan do Do.
Yolanda Dorminy Secretary July 13, July 17, 1972.
Peter A. Holmes... Assistant to the treasurer... July 18, 1972.
Laura Alice Frederick Personal secretary to Fred LaRue. Do.
Kenneth Wells Parkinson Counsel... July 21, 1972.
Paul L. O'Brien Cocounsel July 21, August 11, 1972.
Truman Jacob Weaver Security guard July 18, 1972.
Joseph Earl Ray Mills do July 24, 1972.
James E. Caudill Security man for Republican National committee July 25, 1972.
Senator Byrd. But did the agents have full responsibility for
making their o^\^l decisions as to how far to proceed with those leads?
Mr. Gray. Well, the}" have full decision to suggest, but when it
comes to a judgment question, 3'ou know, the}" are pretty responsive
to power and they know when the}" begin gettmg close that they have
got to ask, and they asked when it came down to interviewing John
Eluiichman, for example.
Senator Byrd. So, then, somebody had to make a decision as to the
scope, is what I am trying to get at.
Mr. Gray. That is right.
Senator Byrd. Who made that decision?
Mr. Gray. I made this decision with Assistant Attorney General
Henry Petersen to interview Jolm Ehrlichman.
Senator Byrd. But you made the decision yourself?
Mr. Gray. Yes; but I consulted Henry Petersen. I did not do it
without his consultation.
Senator Byrd. Did the FBI consult at any time with the Justice
Department as to how the FBI should proceed in the case?
Mr. Gray. Yes, su-; because we are working hand in glove with the
case agents working at the assistant U.S. attorney level and the Bureau
supervisors working at the Criminal Division level and, yes, there were
conferences.
Senator Byrd. Who were the contacts between Justice and the
FBI?
Mr. Gr.\y. The Criminal Division and the Bureau supervisors in
the General Investigative Division and me talkmg with the As-
sistant Attorney General of the Crimmal Di^"ision and with the
Attorney General and my No. 2 man domg the same thmg, the
acting associate director. You know, we work together and we tele-
phone and we talk back and forth.
Senator Byrd. Did you consult mth Mr. Kleindienst, the Attorney
• General himself?
122
Mr. Gray. I did not consult with, him in the sense that I asked
him for directions or guidance or orders. I pushed the FBI button and
said go, give it a full court press, and the}^ know exactly what to do,
Senator, and he put no restrictions, no limitations on me. I testified
this morning a couple of times that if any of the senior officials of the
FBI were called before this committee or the Ervin select com-
mittee, and asked whether any restrictions or limitations were placed
upon them, they w^ould say, no.
Senator Byrd. Did any FBI agent on the case feel there were leads
which should be pursued and which were necessary in the case but
which you or the Justice Department told them not to pursue?
Mr. Gray, If they did I do not know about it. I do not mean to
say that they did not feel that. Some of the people might have felt
that, but they did not report them up to me and say, "Hey, why are
we not doing this?"
Senator Byrd. So, the committee is to understand that no agent at
any time wished to pursue any lead which was turned down by you
or by the Justice Department?
Mr. Gray. I can recollect none. But before I answer under oath so
categoricall}^, I would want to check because that is a pretty broad
cpiestion. I testified earlier this morning that there were instances in
which I stopped the investigation for a couple of days until I could
get something clarified with regard to particular people, I think it
was in response to questions from Senator Hart involving the Central
Intelligence Agency, and then I said go. I turned on the green light.
Senator Byrd. FBI agents were not then really free to follow leads,
were they?
Mr. Gray. They certainly were free to follow any lead they wanted
to follow that involved a criminal violation of the statutes of the
United States in which we have jurisdiction.
Senator Byrd. But when it came to higher-ups in the White House
were they to follow leads?
Mr. Grav. I know of no restrictions that were placed upon them
but the agents know, Senator, just as operating practice — and any
President, I feel sure, would want to be accorded the same treatment
by his subordinates — when you get that close, let us be real sure that
we want to go there, you know, because this is going to become news
right awa}^ that we are interviewing this fellow. This is just a fact of
life and I think the real fact of life is that we interviewed, because
we thought we had to.
Senator Byrd. So when clearance was sought the green light was
given?
Mr. Gray. That is right.
Senator Byrd. In every mstance?
Mr. Gray. I am not going to answer that question that categoricalh*
because there may be some instance, even in my intensive review of
this case and my participation in it, where I could make an error and
I would rather reserve the answer to that so I can check it and give
a statement for the record. Senator Byrd.
(Mr. Gray subsequently submitted the following document for the
record :)
After checking the matter, I have been informed there were no leads the Agents
wanted to follow which they were not permitted to do.
123
Senator Byrd. Did Mr. Kunkel ever ask to interview any party
and
Mr. Gray. Are you referring to Mr. Colson b}^ any chance, Senator?
I do not know. If you can tell me the name of the person you are
talking about.
Senator Byrd. Mr. Kunkel, you referred to the name earlier.
Mr. Gray. Yes, sir; he was the SAC in charge of the Washington
field office.
Senator Byrd. Did he at any time suggest any party be inter-
viewed, which suggestion was turned down?
Mr. Gray. I do not recall any such but I will check the record
again and furnish an answer to that question on the basis of the full
record after careful examination.
(Mr. Gray subsequently submitted the following document for
the record :)
After checking the record I find my recollection was correct and that no inter-
views suggested by SAC Kunkel were turned down.
Senator Byrd. Have any FBI officials associated with the investi-
gation of the Watergate inquuy smce been transferred out of
Washington?
Mr. Gray. Yes, sir; they have and I would like to give the reasons
for the transfer. The assistant director m charge of the General
Investigative Division, Mr. Charles W. Bates, came to me and asked
if he could return to San Francisco as SAC when he found that
position was being vacated. He came to me and made that personal
request and I said, yes; he could. I certainly considered that mimy
people would understand, would interpret this to be Gray transferrmg
somebody out of Washington who had a role in the Watergate. In
fact, Charlie Bates and I discussed it and I said, "Charlie, the heck
with it. There is nothmg mvolved in this, you want to go to San
Francisco, I agree."
SAC Kunkel, who was special agent in charge of the Washington
field office, was transferred to St. Louis for another reason and I
would rather not disclose it.
Senator Byrd. Would you disclose it to the committee?
Mr. Gray. Oh, I will disclose it to the committee, absolutely, and
in copious detail, but it involves a personal and disciplinary matter
and I do not want to air it.
Senator Byrd. Was anyone else transferred?
Mr. Gray. Well, there are lots of people transferred, ^Senator,
and I will supply to the committee a full record of all transfers since,
of kev officials, SAC's and above, since I have been Acting Director
of the FBI.
Senator Byrd. No; I am talking about FBI officials associated
with the direction of the Watergate incident.
Mr. Gray. With the Watergate, oh, I see.
Senator Byrd. You mentioned Mr. Kunkel, and you have men-
tioned Mr. Bates.
Mr. Gray. Right. Henry Shultz, who was the inspector's No. 1 man,
who is now a SAC in New York, the special agent in charge of General
Crime Division, but once again, that is a promotion for him. He was
transferred first to the Inspection Division, which is a lateral pro-
motion in the FBI, and then transferred to New York.
124
There was a resignation, you know, one of the men resigned because
he thought that under my new pohcy of exchangmg officials between
the field and headquarters he was going to go next to the field, so I
am told, and this is hearsay and I would not like to — I will reveal to
the committee this man's name and give the committee the full de-
tails and circumstances but, with regard to his privacy, I would not
like to spell it out here on the public record.
Senator Byrd. Was there an^^one else associated with the direction
of the Watergate inc^uir}' who has since been transferred out of
Washington?
Mr. Gray. I do not know but I will furnish for the record the
exact information that 3^ou want. Senator Byrd. I cannot recall hny
others.
Senator Byrd. Was Mr. Charles Bolz?
Mr. Gray. No; he was not transferred.
Senator Byrd. I beg your pardon?
Mr. Gray. He was not transferred. He was the man I was referring
to, since 3'ou raised his name. He is the man I was referring to who,
under mA' new polic}^ of top people going from headcjuarters to field
and field to headquarters, submitted his resignation and went over to
HUD. I think if Mr. Bolz were called before this committee probably
he would state under oath there was no problem at all with Watergate.
Senator Byrd. Was he associated directly with Watergate?
Mr. Gray. Yes, sir; he was.
Senator Byrd. What agency is he now with?
Mr. Gray. He is mth HUD, I think, but I am not sure.
(Mr. Gray subsequently submitted the following document for the
record :)
I have stated in response to a question by Senator Byrd that I would furnish
for the record the names of anyone associated with the direction of the Watergate
inquiry who has since been transferred out of Washington. I have mentioned
Charles W. Bates, Robert G. Kunkel, Henry A. Schutz, Jr., and Charles Bolz.
On checking the record I find that Mr. Schutz had no connection with the case.
However, there is one other individual who participated in the direction of the
Watergate inquiry for a short j^eriod of time at FBI Headquarters and who
is now assigned to our Boston Oif ce, SA Charles T. Gillespie. Mr. Gillespie at
the time was a Supervisory Special Agent in the General Investigative Division.
He was Number 1 Man to 'Mr. Bolz. Prior to the Watergate matter, Mr. Gillespie
expressed a desire to return to investigative work in the field. I approved his
transfer to the Boston Office on June 20, 1972, however, he did not report there
until July 18, 1972. The Watergate inquiry had no bearing on his transfer.
To summarize information previously set forth, Mr. Charles W. Bates, then
Assistant Director, General Investigative Division, at his own request was
transferred to our San Francisco Office as SAC arriving there November 17,
1972. The Watergate inquiry had no bearing on his transfer. Mr. Robert G.
Kunkel, then SAC of the Washington Field Office, as a result of a matter entirely
unrelated to the Watergate inquirj^, was transferred as SAC of the St. Louis Otrce
arriving there October 26, 1972. jNIr. Charles Bolz, then Chief, Accounting and
Fraud Section, General Investigative Division, by letter dated December 6,
1972, submitted his resignation to be effective close of business December 23,
1972, indicating he desired to remain in the Washington area which he realized
presented a conflict with his obligation to be available for any and all assignments.
For personal reasons he felt bound to accept another position which would permit
him to remain in the Washington area. The Watergate inquiry had no bearing
on his resignation.
There were no other individuals transferred from the Washington area who
participated in the direction of the Watergate inquiry.
Senator Byrd. When were you first aware of the identity of the five
defendants of the Watergate affair?
125
Mr. Gray. I do not know. I vdW have to look in the teletype or in a
summary and furnish that information for the record. That is so
specific a question I just cannot answer it.
Senator Byrd. How were you made aware of their identity?
Mr. Gray. I wdll have to furnish that for the record, too.
(Mr. Gray subsequently submitted the following document for the
record :)
From a review of the records, I find that about 12:30 pm, Pacific DayUght Time,
June 17, 1972, the Special Agent in Charge of the Los Angeles Office briefed me
concerning the early facts which were then known. The names of the individuals
involved at that time were later found to be aliases. The information which was
furnished to me at that time dealt with the arrests of the subjects at the Water-
gate, very sketchy information about materials they were in possession of and the
fact that the FBI was conducting investigation of this situation. At about 3:11
pm, Pacific Daylight Time, June 17, the Los Angeles Office briefed me in more
detail. That briefing was to the effect that the Watergate security guard had found
tape around two door locks, he believed a burglary was in progress, he called the
police who apprehended five subjects in the Democratic Headquarters. The true
identity of Barker, Gonzalez, Martinez and Fiorini was then known, but McCord
had not yet been identified as the true name of the individual who when appre-
hended gave the name Edward Martin. That briefing gave information about the
material which the subjects had in their possession such as lockpicking devices,
surgical gloves, camera equipment, transceivers and a bugging device.
I was informed that search warrants were being issued for hotel rooms used by
the subjects and for the vehicle they Avere known to be using. I was informed that
attorney Michael Douglas Cadd^^ gratuitously appeared at the IMetropolitan
Police Department, Second District Headquarters, and stated he was representing
the subjects who were in custody although the subjects had not previouslj^ made a
telephone call to contact him or anyone else after they were in custody. I was also
informed that all of the subjects refused to be interviewed or to state where they
came from, for whom they worked or their purposes for being in the building. I
was advised they had a substantial quantity of brand new $100 bills in their pos-
session and that further investigation by the FBI was going forward. At about
3:4.5 pm, FBIHQ called the Los Angeles Office to advise the identity of McCord
and this was relayed to me by the Los Angeles Office shortly thereafter.
Senator By'rd. Were you
Mr. Gray'. I believe it was in one of those telephone calls when the
names were given to me but I am going to have to check. I have the
phone calls all listed here and I just do not have all of the details be-
hind each phone call listed.
Senator Byrd. Were a^ou aware that one of the defendants was a
former FBI agent and CIA employee and was the salaried security
coordinator to the Republican Committee, and the Committee to
Re-Elect the President?
Mr. Gray. The information I received is June 17, 3:45 Pacific Day-
light Time, to the effect that McCord^tliis was about the fifth or
sixth phone call — McCord having been identified as an ex-FBI agent
and security officer for the Committee to Re-Elect the President.
Senator By'Rd. Did you know Mr. McCord?
Mr, Gray. No, sir; I did not.
Senator Byrd. Had you ever heard of him previous to that?
Mr. Gray'. No, sir; I had not.
Senator Byrd. During the Watergate trial it was reportedh^ alleged
that Mr. James McCord, Jr., was "plugged" in to the FBI. Can you
tell us how Mr. McCord was plugged in to the FBI?
Mr. Gray'. No, sir. Mr. James McCord, Jr.? Is that the same man?
Senator By'rd. Yes.
Mr. Gray. No; I do not know how he was plugged in to the FBI
and I do not know that he was.
91-331—73 9
126
Senator Byrd. This was reportedly alleged during the trial. Has
anyone in the FBI been asked to check on this?
Mr. Gray. No, sir; but we will sure check on it and submit an
answer to the committee. It is the first I have heard of it.
Senator Byrd. I hear it through the press, as I say. I should think
it would be important for the FBI to check this out.
Mr. Gray. It is and we will submit the information we find to the
Committee, sir.
(Mr. Gray subsequentl}- submitted the following document for the
record :)
Upon checking, Senator, I find that Mr. McCord was an FBI Agent from Octo-
ber 25, 1948, until he voluntarily resigned to enter ])rivate business February 18,
1951. We did not uncover any information, prior to, during, or after the Watergate
investigation to the effect that McCord received classified information'^froni^or
was "plugged into" the FBI.
Senator Byrd. Mr. Robert Houston, one of McCord's assistants
to the Nixon Committee, in describing his duties under McCord said
"Part of my instructions were to receive and record instructions from
outside police forces. The information I got came from the FBI." Can
3'OU tell me what information was turned over to Houston or McCord
or anybod}' else?
Mr. Gray. I do not believe any information was turned over to
anybody. Are 3^ou talking prior to Watergate?
Senator Byrd. I am talking with reference to the Watergate.
Mr. Gray. That he got information from the Federal Bureau of
Investigation regarding the Watergate incident and the conduct of
the investigation?
Senator Byrd. I am quoting him, "Part of my instructions were to
receive instructions from McCord", I assume "were to receive and
record information from outside police forces. The information I got
came the FBI." This may not have been
Mr. Gray. I do not think he was, Senator. What I think they are
talking about is some of their intelligence information with regard to
demonstrations and harassment and the rest of the things that we
are talking about, because I know of no information that we furnished
to a Mr. Houston. I know who Houston is because of the investigation
but once again, we will, if you will tell me from where you are citing
that statement, we will check it out and run it down and give you a
full report. I will give the committee a report.
Senator Byrd. Well, even so, even so, if Mr. Houston was receiving
information from the FBI, I think the committee ought to know what
information was turned over to him.
Mr. Gray. I do not think Mr. Houston was. That is my testimony
right now. What I am saying to you is if he was we will find out about
itand we will give 3^ou a report to the committee.
(Mr. Gray "subsequently submitted the following document for
the record :)
After checking our records, Senator, I find that to our knowledge no information
was given to Mr. Houston.
Senator Byrd. Did you personally know or have contact with
anyone at the Committee for the Reelection of the President?
Mr. Gray. No, sir. I know people there, but I had no contact
with them.
127
Senator Byrd. Did you have contact with anyone emploj'ed by
the Committee for the Reelection of the President?
Mr. Gray. Contact when or where or for what purpose?
Senator Byrd. At any time.
Mr. Gray. No; I had nothing to do with that committee.
Senator Byrd. You had no contact with any employee of that
committee?
Mr. Gray. No. Except during the conduct of this investigation,
the FBI did; we interviewed those people. But I had no personal
contact. I had no telephone calls. I had no letters. I had no visits.
Senator Byrd. Irrespective of the Watergate investigation, did
you have any contacts?
Mr. Gray'^, No.
Senator Byrd. Did 3^ou know anyone on the committee? Did you
know anyone on the committee staff? Did you ever have any contact
with them?
Mr. Gray. Sure; I knew those people — sure. I knew Bob Mardian
and John Mitchell and Fred LaRue; I came to know those people
after I came to Washington and after 1969. I did not know them
before that.
Senator Byrd. When did 3"ou first learn of Mr. Lidch''s involvement
in the Watergate break-in?
Mr. Gray. I will have to give you the exact information because
I did not provide mvself with that kind of detailed information today
and I will have to submit it. It probably came to me under an alias
first and then probably came to me with his true name as we developed
it. I know I have the names of the people who were arrested but those,
as we know, were aliases as we later found out. But I will have to
find the exact time that George Gordon Liddy's name was delivered
to me, Senator.
Senator Byrd. And from whom.
Mr. Gray. And from whom; yes.
(Mr. Gray subsequently submitted the following document for
the record :)
I find, Senator Byrd, upon checking the records, that on June 18, 1972, we
first learned that one George Leonard, later identified as George Gordon Liddy,
was registered at the Watergate Hotel with the group which was arrested at the
Democratic Committee Headquarters. Extensive efforts, of course, were made
to endeavor to identify' Leonard. On June 28, 1972, Assistant Director Bates
directed a memorandum to Acting Associate Director Felt which stated that at
12:50 P.]\L that date, SAC Kunkel had called to advise that in tracing telephone
calls of Martinez and Barker, one of the numbers called at the Committee to
Reelect the President was that of a Mr. Gordon Liddy. Our Agents attempted
to interview Liddj' that da.y and he refused to be interviev/ed. Subsequently, on
7/3/72, Liddy's photograph was positively identified as being the individual
known as George Leonard.
Senator Byrd. Were 3^011 aware that \h\ Liddy was a former FBI
agent and that he was finance counsel for the Committee to Re-Elect
the President at the time of the Watergate break-in?
Mr. Gray. No; I was not. I did not even know Mr. Lidd}'.
Senator Byrd. You did not know him personally' ?
Mr. Gray. No, sir; I did not.
Senator Byrd. Even through the Committee to Re-elect the
President?
Mr. Gray. No, sir; I did not.
128
Senator Byrd. You indicated earlier todaj^ that the President had
suggested to ^Irs. Gray she not work for the Committee for the
Re-Election of the President.
Mr. Gray. Yes, sir. She was going to go douii there as a
volunteer, a lot of ladies were volunteering to do A\'ork for the
Committee to Re-Elect the President, and she said to the President
when we came back from Mr. Hoover's funeral, "Pat has told me I
must never ask questions of the President but I want to know if it
would be all right for me to volunteer to work for the Committee to
Re-Elect the President." And he said, "No, you must not, 3"ou
cannot do that," and she did not.
Senator Byrd. Had she previously worked for the committee?
Mr. Gray. No sir.
Senator Byrd. When did you first become aware of Mr. Howard
Hunt's role in the case?
Mr. Gray. I think it may have been when I read the teletj^pes
regarding his investigation, regarding the fact that we interviewed him
that Saturday evening, the 17th, but I will have to once again go to
the record and provide 3'ou mth the exact information, Senator.
Senator Byrd. And indicate — ■ —
Mr. Gray. From whom.
Senator Byrd (continuing). From whom the information came.
(Mr. Gray subsequent!}" submitted the follo\ving document for the
record :)
After checking the records, I find the FBI first became aware of Mr. Hunt's
involvement in this case during the search conducted on the afternoon of June 17,
1972, of the two rooms at the Watergate which were rented by the arrested men.
During that search an envelope containing a country club biU of Mr. Hunt's
was found. Also located during this search was an address book which belonged
to Bernard Barker and contained the letters "HH, W. House," beside which letters
was telephone number 202-4-36-2282.
A check of the field office indices showed we had previously conducted a Special
Inquiry investigation on Hunt in 1971 at which time he was being considered for
a job as Consultant to the White House. Subsequent contact was made with
Mr. Butterfield at the White House between 6:00 and 7:00 pm, June 17, 1972,
and he indicated Mr. Hunt had previously worked as a White House consultant,
but Mr. Butterfield did not believe he was then employed by the White House.
Senator, it is my recollection that I personalh^ was advised of Mr. Hunt's
involvement in this case by my associate, W. Mark Felt, who telephoned me on
June 18, 1972.
Senator Byrd. Were you aware that Mr. Hunt had been a
consultant to the White House?
Mr. Gray. Not until the investigative reports began coming across
my desk. I did not know Howard Hunt.
Senator Byrd. Were you aware that he had worked for ]\Ir.
Charles Colson?
Mr. Gray. No, sir; I was not.
Senator Byrd. Did a^ou know Mr. Hunt personally?
Mr. Gray. No, sir. '^
Senator Byrd. Did the FBI ciuestion Mr. Hunt?
Mr. Gray. Yes, sir; we interviewed him that evening and he did
not do very much talking. As I recall, the interview report said that
he wanted to consult an attorney.
Senator Byrd. Were you aware that Mr. Colson sent Howard Hunt
to Denver last March to interview the ITT lobbjdst, Dita Beard?
129
Mr. Gray. I was not, no, sir; I was not until the investigation,
this Watergate investigation, developed and we found it out through
that. I believe w^e found it out through that. I may be misspeaking
myself and I had better check the record on that before I get on with
that one.
(Mr. Gray subsequently submitted the following document for
the record :)
After checking our records, Senator, I find that Mr. Colson was interviewed
by Washington Field Office on June 22, June 26, August 29 and August 30, 1972.
Concerning Howard Hunt's travel and reimbursement for travel expenses, he
said on August 29, 1972, he was aware that Mr. Hunt traveled on a frequent
basis, but that there were only two trips that Mr. Hunt made which were au-
thorized by Mr. Colson. He assumed the other trips were on behalf of some other
):)erson. With respect to the trips that Mr. Colson authorized, one was to Denver,
Colorado, in March, 1972, in connection with the "ITT case." Mr. Colson did
not state what was learned by Mr. Hunt on this trip and the matter was not
pursued by our Special Agents since there was no relationship between that trip
and the Watergate matter and we were not investigating ITT.
Senator Byrd. Were you the decisionmaker with regard to the
information that would be supplied to the Judiciary Committee
during the hearings on the nomination of Mr. Kleindienst?
Mr. Gray. No, sir; I was not the decisionmaker until there came
an exchange here when it was thought that Mr. Kleindienst ought to
take himself out of the position of making those decisions. I do not
remember excatl}^ when that was. I would have to go back to the record
but there did come a time when I, as Deputy Attorney General
Designate, made those decisions on the basis of the rules and regula-
tions of the Department and on the advice that I received from the
Antitrust Division.
Senator Byrd. You do not recall the date?
Mr. Gray. I do not recall the date; no, sir.
Senator Byrd. Will 3'ou supply that for the record?
j\Ir. Gray. Oh, yes, sir; we will do that. W^e will have to check the
record of testimon}^ of the ITT hearings.
(Mr. Gray subsequently submitted the following documents for
the record:)
Mr. Gray. Upon checking the record I find that I started making the decisions
regarding the furnishing of information to the Judiciary Committee during the
hearings on the nomination of Mr. Kleindienst on either March 9 or 10, 1972.
That is as precise as I can be. My first letter to the Chairman of the Judiciary
Committee in which certain information was furnished and other information
w^as withheld is dated March 17, 1972. This letter and letters from me dated
March 23 and 24, 1972 addressed to James F. Flug, April 4, 1972 to Mr. Flug,
tw^o letters of April 7, 1972 addressed to Senator James O. Eastland, letter of
April 11, 1972 and letter of April 28, 1972, with enclo.sures addressed to Senator
Eastland, are provided for insertion in the record,
March 17, 1972.
Hon. Jamks O. Eastland,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, D.C.
Dkar Mr. Chairman: On Monday evening, March 13, Mr. .lohn Holloman,
Committee Chief Coimsel, delivered to the Department a document entitled
"List of Documents Requested for Senate Judiciary Hearing as of March 13, 1972."
I am forwarding some of the documents on that list. Other documents oa the list
do not exist or cannot be fovmd. Some have already been supplied to the Com-
mittee. Finally, the Department of Justice declines to supply some of the docu-
ments requested for the reasons stated below.
Following is an item-by-item response to the list:
Item No. 1. — Copy of the Attorney General Memorandum in the Canteen case,
dated April 7, 1969.
Attached.
130
We request that this document be available for inspection bv Senators only, that
no copies be made and that it be returned to the Department of Justice "at the
conclusion of these hearings.
Item No. 2. — Xerox of any notes, buck slips, and memoranda showing back-
ground behind filing of appUcations to delay submission of jurisdictional statement
m Gnnnell case in Supreme Court.
None.
Item No. 3. — Xerox of any notes, buck slips, and memoranda relating to selection
and/or appointment of Richard Ramsden as coasultant, especially the conflict of
interest form required by Executive Order.
None.
Item No. 4- — Xerox of any memoranda reflecting receipt of Bruce McLaury oral
opinion on ITT arguments.
None.
Ilcm No. 5.— Copy of the original of a letter dated Sept. 21, 1971 from Mr.
Reuljeu B. Robertson III to Deputy Attorney General Klcindienst.
Attached.
Item No. 6. — Xerox of (he copy of the Robertson letter that Robertson sent to
McLaren.
Attached.
Item No. 7. — Xerox of any notes, Ijuck slips, and memoranda showing background
behind Sept. 22, 1971 reply from iNlcLaren to Robertson.
None in addition to the documents we have already produced.
Hem No. 8. — Copy of the file copy of a letter dated Sept. 22, 1971 from Assistant
Attorney General Richard W. AIcLaren to Mr. Reuben B. Robertson III in
response to a Sept. 21, 1971 letter from Mr. Robertson to the Deputy Attorney
General.
Attached.
Item No. .9.— Copy of the original of a memorandum dated April 9, 1969 from
Assistant Attorney General Richard W. McLaren to the Deputy Attorney Gen-
eral, re "ITT-Canteen."
Attached.
Item No. 10 — Copy of the original of the memorandum dated October 13, 1970
from Assistant Attorney General Richard W. McLaren to the Deput^' Attorney
General.
We are unable to locate the original memorandum. A better copy of the file
copy of this memorandum is attached.
Item No. 12.— Copy of the file copy of a letter dated Jan. 27, 1969 to Mr. Harold
S. Geneen from Robert A. Hammond III, Acting Assistant Attorney General,
Antitrust Division, by John W. Poole, Jr., Attorney, Antitrust Division.
Attached.
Item No. 13. — Xerox of complete "original" of letter from Frank DeMarco to
Henrj- Peterson.
Previously supplied to Committee.
Item No. 14. — Xerox of "file copy" of letter from Henry Peterson, by John
Ke(>ney, to Frank DeMarco.
Previously supplied to Committee.
Item. No. 15. — Any notes, buck slips, and memoranda showing background of
Peterson letter to DeMarco.
None.
Item No. 16. — Xerox of any copies of Walsh letter to Kleindienst, other than
"original."
None.
Item. No. 17. — Chronology of ITT filings requested by Senator Burdick.
We are providing a copy of the docket entries maintained by the Department in
the ITT cases.
Item No. 18. — All Ramsden filings with the Commerce Department.
In i:)rocess of obtaining for review and determination.
Item No. 19. — Any written instructions to Ramsden, etc.
None.
Item No. 20. — Any memoranda or other material reflecting or relating to
Ranisden report on LTV case.
None.
W^e are withholding the remaining items requested on the basis that they include
confidential summaries, investigative reports and intradepartmental communica-
tions. If such materials are released, it would severely inhibit obtaining confidential
131
information and exchange of ideas and recommendations necessary to effectively
carry out the law enforcement policy of the Department of Justice and the
Federal government. This action is being taken pursuant to the long standing
policy of the Department not to produce documents of this character unless it
is shown to be in the compelling public interest. In this regard we wish to reiterate
Mr. Kleindienst's prior statement. "There is nothing in the material that we
have withheld from you that would tend to prove or have any relevant bearing
upon the charge that there was any connection whatsoever between the settlement
of the ITT antitrust cases and any payment by the ITT Corporation to the City
of San Diego in connection with the Republican Convention. I will make that
avowal vmder oath before you and this Committee and the public."
Sincerely,
L. Patrick Gray III,
Assistant Attorney General, Civil Division,
and Deputy Attorney General Designate.
March 24, 1972.
Jamks F. Flug, Esq.
Chief Counsel, Subcommittee on Administrative Practice and Procedure, Committee
on the Judiciary, U.S. Senate, Washington, D.C.
Dkar Jim: Yesterday at approximately 3:00 p.m., we received the latest re-
quest from the offices of Senators Hart, Kennedy, Bayh, Burdick, and Tunney for
the production of documents.
This request was not contained in a letter from the Chairman of the Judiciary
Committee of the United States Senate requesting that these documents be
provided for the use of the Committee.
Upon receipt of such a letter, identif.ving the documents with specificitj^, we
shall respond as quickly as may be practicable.
Sincerely,
L. Patrick Gray III,
Assistant Attorney General,
and Deputy Attorney General-Designate.
Department of Justice,
Washington, March 23, 1972.
James F. Flug, Esq.,
Chief Counsel, Subcommittee on Administrative Practice and Procedure, Committee
on the Judiciary, U.S. Senate, Washington, D.C.
Dear Jim: In accordance with our telephone conversation this morning, I am
setting forth my understanding of our previous verbal agreement relative to
inquiries to be made by staff members in behalf of Senators who are members of
the Judiciary Committee of the United States Senate, in connection with the cur-
rent hearing involving the settlement of the ITT antitrust case and the material-
ity of such settlement to the confirmation of Richard Gordon Kleindienst to be
Attorney General of the United States.
(a) All such inquiries are to be directly related to and material to the charge
that the ITT antitrust cases were settled in return for an agreement on the part of
ITT to contribute a sum of money to the City of San Diego in support of its bid
to host the Pv,epublican National Convention in the City of San Diego, California.
(b) Such inquiries requesting the production of documents in possession of the
Department of Justice should be contained in a letter request from the Chairman
of the Judiciary Committee addressed to me, stating with specificity the docu-
ments desired. The Department will respond as quickly as may be practicable
under the circumstances, and will either produce the document requested, or state
its reason for not producing such document.
(c) Such inquiries involving an interview with an attorney or an emploj^ee of
the De]Dartment of Justice will be handled in the following manner:
1. I will not instruct an attorney or employee of the Department either to
consent to the interview or refuse the interview. The granting of the interview is
a choice that the attornej' or employee is free to make unaided b^' any instructions
from me.
2. I will be informed, prior to the interview, of the name of the attorney or
employee to be interviewed.
3. The Assistant Attorney General of the division or office in which the attorney
or emplo3^ee is employed, or his designee, will be present at such interview.
132
You have requested my assurances that there will be no recriminations against
an attorney or employee of the Department who consents to an interview in ac-
cordance with subparagraph (c) above. You have my assurance that there will
be no disciplinary or dismissal action taken against any attorney or emploj^ee as
the result of the granting of such an interview unless' it shall become apparent
therefrom, or from information acquired independently, that such attorney or
employee has violated laws, orders, regulations, or ethics applicable to the conduct
of emplo3^ees of the Department of Justice.
The Department desires to cooperate fully and to the extent permissible under
the apphcable laws, orders and regulations, and constitutional principles governing
the conduct of the business of the Executive Branch of the Government.
Sincereh",
L. Patrick Gray III,
Assistant Attorney General
and Deputy Attorney General-Designate.
April 4, 1972.
Jamks F. Flug, Esq.,
Chief Counsel, Subcommittee on Administrative Practice and Procedure, Committee
on the Judiciary, U.S. Senate, Washington, D.C.
Dkar Jim: This is in response to your letters of April 3, 1972.
In a telephone conversation witli you in the afternoon of March 23, 1972,
following your receipt of my letter of March 23, 1972, neither vou nor I agreed
that the letter was "totally incorrect."
In that conversation, I stated to you that I intended to distribute my letter
of March 23, 1972 to each Assistant Attorney General and the three Associate
Deputy Attorneys General, and I also said that distribution may have already
occurred. I assured you that I would recall the letter since yf>u and I apparently
did not have a clear understanding of one provision of "that letter regarding
the procedure to be followed in your conduct of interviews with certain Depart-
ment employees. Immediately upon the conclusion of my conversation with you,
I checked with my secretary regarding distribution. All copies were in my safe
with the exception of one. No others had been distributed at that moment and
no distribution has occurred since that time.
I told you I had sent one copy to vSenator Eastland. I also told you that I would
see the Senator the next day and tell him that vou did not agree with each pro-
vision of my letter of March 23, 1972. I did see him and I did tell him.
If your informant will advise you of the copy of the letter alleged to be in
circulation, I will recall that one unless it happens to be the one "delivered to
Senator Eastland. On March 24, 1972, Messrs. Wilson and Woodard were advised
that yt)u and I were not in agreement and regular Department policies were to be
followed.
This misunderstanding reflected in our correspondence and conversations tf)
date is evidence of the reason underlying my strong desire tf) conduct our business
in accord with the well defined policies of the Department. My letter of March 24,
1972 merely reiterates Department policy.
Sincerel}%
L. Patrick Gray III,
Assistan^t Attorney General,
and Deputy Attorney General-Designate.
April 7, 1972.
Hon. James O. Eastland,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, D.C.
Dear Mr. Chairman: On March 23, 1972, at approximately 3:00 p.m., I re-
ceived a list setting forth documentary materials desired by the offices of Senators
Hart, Kennedy, Bayh, Burdick and Tunney from the files of the Department.
There was no indication thereon that the list constituted a Committee request.
On March 24, 1972, I addressed a letter to James Flug, Esq. of Senator Ken-
nedy's staff stating that Department policy required that such requests be made
in writing over the signature of the Chairman of the Committee. A copy of my
letter is attached.
On April 6, 1972, at approximately 5:00 p.m., I was informed that the Com-
mittee desired to have the documentarj^ materials delivered to the Committee
not later than 10:30 a.m., April 7, 1972.
133
Included on the list which I received at approximately 3:00 p.m., March 23,
1972, are repeat requests for copies of documents previously furnished to the Com-
mittee in response to a direct request from you. These are described on the March
23, 1972 list in the following manner:
A. See Item No. 8 in Gray's March 17 letter to the Chairman. Notwithstanding
Gray's assertion that the requested document was "attached", a xerox of the "file"
copy was not attached. The only thiag that was attached was a xerox of some
other copy. We want a xerox of the "tile" copy, also known as the "records" copy.
It's the copy which is specifically earmarked for the Department's record or file
and customarily contains the initials of all reviewers.
B. See Item No. 10 in Gray's March 17 letter to the Chairman. In view of the
fact that the Department is "unable to locate the original memorandum" from
McLaren to the Deputy Attorney General, we need xerox copies of all cards
and/or mail slips and/or log records maintained by the office of Messrs. McLaren
and Kleindienst, and/or any other Justice Department offices including mail
rooms, which would reflect which offices received, transmitted, and/or were
addressees or transmittees of the original memorandum.
C. See Item No. 12 in Gray's March 17 letter to the Chairman. Notwithstanding
Gray's assertion that the requested document was "attached", a xerox of the
"file" copy was not attached. The only thing that was attached was a xerox of
iViahaffie's copy. We want a xerox of the "file" copy, also known as the "records"
copy. It's the copy which is specifically earmarked for the Department's record or
file and customarily contains the initials of all reviewers.
D. See Item No." 13 in Gray's Alarch 17 letter to the Chairman. Notwithstand-
ing Gray's assertion that the requested document was "previously supplied to
Committee", the Committee staff says they have not seen it. We have received a
xerox of the "original", but it appears to be incomplete in view of the excision
marking which appears near the upper right-hand corner. We want a xerox of the
complete "original."
E. See Item No. 14 in Gray's March 17 letter to the Chairman. Notwithstand-
ing Grav's assertion that the requested document was "previously supplied to
Committee," the Committee staff says they have not seen it. We have received a
xerox of the "original", which presumably came from DeMarco's files, but we
need a xerox of the "file" copy, also known as the "records" copy, from the De-
partment's files. It's the copy which is specifically earmarked for the Depart-
ment's recf.rds or file and customarily contains the initials of all reviewers.
H. See Item No. 18 in Gray's March 17 letter to the Chairman reflecting that
the requested documents were in the process of being obtained.
I. See last paragraph of Gray's March 17 letter to the Chairman refusing to
provide (1) the ITT settlement' file and (2) the Department's file on"Coldwell,
Banker". The request for these files is reasserted with respect to all documents, or
portions thereof regarding which the President has not invoked or is not prepared
to invoke Executive Privilege. Each document, or portion thereof, not provided
should be itemized with a description of its nature, contents, author, addressee,
and date.
In view of the fact that copies of some of these documents have previously
been provided to the Committee in response to a direct request from you, I am
pleased to make the following report:
A. No copy was made for or sent to Department "Files" or "Pv-ecords."
B. The orginal has been located and is enclosed. It is requested that a copy be
made and the original be returned to me.
C. We cannot locate a " File" or " Records" copy.
D. A xerox copy made from the original is enclosed. The original has been
returned to the Departinent of Justice files, and we are currently searching the
files to obtain the original. When we have the original in hand, it will be forwarded.
E. A xerox copy made from the original is enclosed. The original has been re-
turned to the Department of Justice files, and we are currently searching the files
to obtain the original. When we have the original in hand, it will be forwarded.
H. Delivered with Department of Commerce letter of March 23, 1972 to the
Chairman.
I. We are withholding the documents requested on the basis that they include
confidential summaries, investigative reports and intradepartmental communica-
tions. If such materials are released, it would severely inhibit obtaining confi-
dential information and exchange of ideas and recommendations necessary to
effectively carry out the law enforcement policy of the Department of Justice and
the Federal Government. This action is being taken pursuant to the longstanding
policy of the Department not to produce documents of this, character unless it is
shown to be in the compelling public interest.
134
Within seventy-two (72) hours after receipt of a request in writing over your
signature for documentary materials from the files of the Department of Justice
for the use of the Committee, a reply will be dispatched to you.
With my best wishes and warm respect.
Sincerely.
L. Patrick Gray III,
Assistant Attorney General,
and Deputy Attorney General-Designate.
Enclosures.
April 7, 1972.
Hon. James O. Eastland.
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, D.C.
Dear Mr. Chairman: In accordance with the statement made in my letter
of April 7, 1972 to you, there are enclosed originals of documentary materials
referred to in Items D and E on page 3 of my letter to you. It is requested that
copies be made and the originals be returned to me.
With my best wishes and warm respect.
Sincerely,
L. Patrick Gray III,
Assistant Attorney General,
and Deputy Attorney General-Designate.
Enclosures.
April 11, 1972.
lie request for documents involving U.S. Attorney Harry Steward of San
Diego, Calif.
Hon. James O. Eastland,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, D.C.
Dear Mr. Chairman: On Friday afternoon of last week, you caused to be
delivered to me a Hst setting forth seven documents requested by Senator Tunney.
You requested that these documents be made available to the Committee.
As you know, it is not the policy of the Department of Justice to release reports
of investigations conducted by the Federal Bureau of Investigation. The first
five items on the hst of documents are constituent parts of the final report of
an investigation conducted by the Federal Bureau of Investigation and may not
be made available.
Items 6 and 7 on the list of documents relate to internal Justice Department
memoranda involving the subject matter of the foregoing final report of investiga-
tion conducted by the Federal Bureau of Investigation and may not be made
available.
It is my understanding that you have requested that Honorable Henry E.
Petersen, Assistant Attorney General, Criminal Division, appear as a witness,
and that Mr. Petersen will appear and testify before the Committee. I believe
that the testimony of Mr. Petersen will constitute a summary of the final report
of the investigation conducted by the Federal Bureau of Investigation.
With my best wishes and warm respect.
Sincerely,
L. Patrick Gray III,
Assistant Attorney General,
and Deputy Attorney General-Designate.
April 28, 1972.
Hon. James O. Eastland,
Chairman, Committee on the Judiciary, U.S. Senate, Washington, D.C.
Dear Mr. Chairman: During the course of the proceedings before the Com-
mittee on April 27, statements were made concerning our failure to supply certain
materials to the Committee. These materials are the items listed under "Addi-
tional Materials Requested" in the list originallv supplied to me on March 23,
1972.
In my letter of April 7, 1972, the concluding paragraph was as follows:
"Within seventj^-two (72) hours after receipt of a request in writing over your
signature for documentary materials from the files of the Department of Justice
for the use of the Committee, a reply will be dispatched to you."
We have not received such a request.
135
Nevertheless, in view of the request made during the hearings on the afternoon
of April 27, 1972, I am pleased to respond to the request for each of those items
listed under "Additional Materials Requested" in the list of March 2o, 1972 as
follows :
J. No such steps have been taken. It has been a policy of this Department to
predicate the initiation of any investigation and prosecution of allegations of
criminal misconduct made before a Congressional Committee upon a referral
of such Committee to this Department with references to particular instances of
the alleged misconduct and requests for prosecutive consideration of those in-
stances. This policy has been found necessary in order for this Department to
take full advantage for prosecutive purposes of the evidence and knowledge
developed bj^ the Committee establishing the particular facts or circumstances
in issue. Moreover, we would not want to take such action without the full knowl-
edge, approval, and official sanction of the Committee. No instance readily
comes to mind in which the Department independently examined allegations of
criminal misconduct without prior referral b\^ the Congressional Committee
before whom the testimony was taken.
K. None. See response to item J.
L. We respectfully decline to respond to the request for these items for the
reason that it inquires into the Ijasis and background of advice and opinions
concerning Department and Administration policy. Disclosure of such materials
would make it difficult in the future tf) obtain the necessary exchange of ideas
and thoughts so essential to the proper development of policy.
M. See response to item L.
N. See response to item L.
O. See response to item L.
P. There are no such reports transmitted to the Attorney General and were
no such reports transmitted relating to the ITT cases.
Q. There are no such reports transmitted to the Deputy Attorney General
and were no such reports transmitted relating to the ITT cases.
R. There are none, as indicated in the responses to items P and Q.
S. A xerox copy made from the original is enclosed. It should be noted that
these lists d(j not necessarily include all visitors to the Department. The lists are
maintained by receptionists at two of the entrances. Persons having some form
of identification as Federal Government employees and persons accompanying
the Attorney General and Deputy Attorney General are not required to sign the
list.
T. As indicated to you in my letters of March 17 and April 7, 1972, we are
withholding the documents requested on the basis that they include confidential
summaries, investigative reports and intra-departmental communications. If
such materials are released, it w^ould severely inhibit obtaining confidential
information and exchange of ideas and recommendations necessary to effectively
carry out the law enforcement policy of the Department of Justice and the
Federal Government. This action is being taken pursuant to the long standing
policy of the Department not to produce documents of this character unless it
it is shown to be in the compelling public interest.
U. This list was requested some time before the testimony of Honorable
Henry E. Petersen, Assistant Attorney General, Criminal Division. As you
know, Mr. Petersen's testimony covered this matter in great detail and constituted
in effect a summary of the final report of the investigation conducted by the
Federal Bureau of Investigation. As I previously indicated to you in my letter
of April 11, it is not the policy of the Department of Justice to release reports
of investigations conducted by the Federal Bureau of Investigation nor in-
ternal Justice Department memoranda involving the subject matter of such
investigations.
V. See response to item U.
With my best wishes and warm respect.
Sincerely,
L. Patrick Gray III,
Assistant Attorney General,
and Deputy Attorney General-Designate.
Enclosure.
Senator Byrd. Were you a^Yal•e of transmission by the chairman on
March 10, 1972, of the Dita Beard memorandum to the FBI through
the Justice Department?
136
Mr. Gray. I do not know that I was aware that the chairman
transmitted it. I was aware that it was there but I do not know how
I was aware of that. I cannot recalL
Senator Byrd. Were you aware of the transmission — there were two
transmissions, one on INIarch 10 and one on March 16 — through the
Justice Department to the FBI? Were you aware of either of these?
Mr. Gray. I am going to ask if I might provide that answer for the
record because I am not at all certain. I will have to look at the cor-
respondence and refresh my recollection and then answer 3^ou, Senator
Byrd, for the record.
(Mr. Gray subsequently submitted the following document for the
record :)
My jaersonal recollection is that there were two transmittals of the Dita Beard
memorandum to the FBI. The first one occurred on March 10, 1972 and the second
was on March 15, 1972. Upon checking internally within the FBI, I am now aware
of three transmittals of the Dita Beard memorandum to the FBI, the two men-
tioned above and a third one occurring on March 17, 1972.
Senator Byrd. Until it was returned to the Judiciar}^ Committee
was the Beard memorandinn at any time in the hands of anyone other
than the Justice Department courier or the FBI?
Mr. Gray. Yes, sir. I believe it was because I believe that sometime
during that period of time that memorandum was in the hands of the
counsel to the President.
Senator Byrd. Referring again
Mr. Gray. But I do not know how it got there. I would have to
check the record to be certain how it got there, but I believe this is a
correct statement.
(Mr. Gray subsequently submitted the following document for the
record:)
Upon checking the record I found that the Dita Beard memorandum was made
available to Mr. Dean, the counsel to the President, by me.
Senator Byrd. Would you also indicate for the record, whether the
memorandum of transmittal was directed to the FBI by the Justice
Department?
Mr. Gray. Would I indicate that for the record?
Senator Byrd. Yes.
Mr. Gray. Yes, sir; I would.
(Mr. Gray subsequently submitted the following documenc for the
record :)
Upon checking the record I found there was no memorandum of transmittal
of the Dita Beard memorandum directed to the Federal Bureau of Investigation
b}" the Justice Department.
Senator Byrd. Referring again to the interview between Mr. Hunt
and Dita Beard, did the FBI question Mr. Colson as to the purpose
of that interview"?
Mr. Gray. I do not believe that we did. I do not believe — you
mean, at the time of the ITT or the Watergate investigation, Senator,
which one are 3*ou referring to?
Senator Byrd. Well, if you were aware at the time of the
Mr. Gray. I have no present recollection of it and I am going to
have to refresh my recollection but I want to know which time 30U
are talking about, either the ITT
Senator Byrd. Well, in either case.
137
Mr. Gray. All right, in either case, we will furnish that information.
(Mr. Gray subsequently submitted the following document for
the record:)
After checking the record, I find that we did not question Mr. Colson as to
the purpose of Mr. Hunt's trip to Denver, Colorado, since there was no apparent
connection between that trip and the Watergate investigation and we were not
investigating the ITT matter.
Senator Byrd. Mr. Colson, according to the Washington Post,
Februar}^ 21, 1973, Special Counsel to President Nixon, said:
Watergate bugging figure sent Howard Hunt to Denver last March to inter-
view ITT lobbjdst Dita Beard, according to Colson's own sworn testimon.v.
Sources close to the Watergate investigation said Colson's testimony was given
in a secret deposition to Federal investigators during the Watergate probe last
year.
Mr. Gray. Was that a deposition for the grand jury?
Senator Byrd. I am reading from the paper:
* * * was given in a secret deposition to Federal investigators during the
Watergate probe last year. The Federal investigators did not ask Colson the
purpose of the interview.
1 am asking you whether or not the FBI questioned ]\Ir. Colson
as to the purpose of that interview.
Mr. Gray. I do not know 1 even knew about that interview because
1 think what j^ou are referring to. Senator Byrd, is a deposition for
the grand jury and we do not have access to that. Those proceedings
are secret until Judge Sirica releases them. We do not have access
to them but I will furnish to the committee the information that we
are able to obtam.
(Mr. Gray subsequently submitted the following document for
the record :)
As I indicated previoush*, Senator, when our Agents interviewed Mr. Colson
on August 29, 1972, concerning Mr. Hunt's travel, Mr. Colson said one trip
which he authorized Mr. Hunt to make was to Denver, Colorado, in connection
with the ITT matter. Our Agents did not question Mr. Colson about that trip
further since there was no involvement of the ITT case with the Watergate
bugging. We do not know what questions were posed to Mr. Colson b.y the
Assistant U.S. Attorneys who took a sworn deposition from him as that deposition
was for grand jury purposes.
Senator Byrd. What you are saying is that Federal investigators
maj^ not have been FBI investigators, is that correct?
Mr. Gray. That is correct, because I think that what is being
referred to there is the actions of the assistant U.S. attorney in making
his deposition for presentation to the Federal grand jury.
Senator Byrd. Would not the FBI think it important to know
how and wh}^ Mr. Hunt was tied into both the ITT case and the
Watergate case?
Mr. Gray. I do not know that the thought ever crossed our minds.
Senator Byrd. Wh}^ would it not?
Mr. Gray. Well, I just do not know that it did or it did not, I
am going to have to
Senator Byrd. It has crossed my mind.
Mr. Gray. Well, 1 did not know, you know, I did not relate that
way at all, because I did not know at the time that Howard Hunt —
you are reading from a deposition from a grand jury apparently,
that the Washington Post got hold of. I have not had access to that
deposition.
138
Senator Byrd. What I am sajdng is this, you were in the role of
decisionmaker at the time the Judiciary Committee was considering:
the nomination of Mr. Kleindienst.
Mr. Gray. That is right, and I did not know it at that time.
Senator Byrd. At the time apparently Mr. Colson sent Mr, Hunt
out to Denver to interview Dita Beard.
Mr. Gray. I did not know that at the time.
Senator Byrd. This is why I am asking whether or not j^ou knew
of this.
Mr. Gray. At that time Avhen I was
Senator Byrd. Back
Mr. Gray. No, no; 1 did not know that.
Senator Byrd. And would it not be important now to know whether
or not ISIr. Hunt was connected with both of these cases?
Mr. Gray. 1 do not know. 1 am going to have to review on that
because 1 cannot really see the tie-in of Dita Beard and Watergate.
1 am having trouble making that tie-in.
Senator Byrd. The tie-in is Mr. Hunt, No. 1, and Mr. Colson,
No. 2, of the White House. Mr. Hunt was emplo^'ed by Mr. Colson,
on the recommendation of Mr. Colson, and worked for the White
House.
Mr. Gray. 1 am going to have to see it and furnish it for the
record, because at the time of the ITT thing when I was making
those decisions regarding documents I had no idea that Mr. Hunt
went to Denver to interview Dita Beard.
(Mr. Gray subseciuently submitted the following document for
the record :)
Mr. Gray. After carefully reviewing this matter in my mind, Senator Byrd,
I must again respectfully state to you that at the time of the ITT matter involving
Mrs. Dita Beard, I had no knowledge of Mr. Hunt or that he had been sent to
Colorado concerning the ITT matter. We learned of this trip on August 29, 1972,
from Mr. Colson. The Special Agents handling the Watergate case could see no
relationship between Mr. Hunt's trip and the Watergate case and I still can see
no connection.
Senator Byrd. So, 30U did not know Mr. Hunt and you did not
know about the trip?
Mr. Gray. No, sir.
Senator Byrd. Did the FBI ever question Alfred C. Baldwin?
Mr. Gray. Yes, sir; we did.
Senator Byrd. Mr. Baldwin was an ex-FBI agent and an alleged
participant in the Watergate bugging case.
Did the FBI question Mr. William E. Timmons, Assistant to the
President for Congressional Relations?
Mr. Gray. I believe we did. I have already said, Senator Bj^rd,
that we will make available, for the record, the list of the witnesses
or list of the individuals that we interviewed at the White House and
the Committee to Re-elect the President. Let me see if I cannot find
that right here, who is it, Timmons?
Senator Byrd. Perha])s I should preface my cj[uestion by saying
that, quoting from the Congressional Quarterly,
The Washington Post reported that Baldwin told the FBI that memos de-
scribing wire taps and bugged conversations with in the Democratic headquarters
were sent to William E. Timmons, Assistant to the President for Congressional
Relations, RoVjert C. Odle, Jr., a former White House aide, who is now Director
139
of Administration for the Committee for the Re-Election of the President, and
J. Glen Sedam, Jr., who is Counsel for the Re-Election Committee. The charges
were denied.
}^Ir. Gray. Yes; and I think that certain!}'- is not in accord with
what Baldwin has given us and I do not know what Baldwin has
given the grand jury. Baldwin merel}^ said to us that he observed
memoranda being t3^ped b}- McCord to Odle and to Tiinmons but he
could not state that these related to his monitoring activities.
Senator Byrd. Did the FBI question Mr. Timmons or Mr. Odle or
Mr. Sedam?
Mr. Gray. Yes, sir; we did. We questioned Mr. Odle quite a bit.
We questioned ^Ir. Timmons on September 8, 1972, and Mr. Odle —
let me see if I can find it here — we questioned him on the 19th of
June, the 20th of June, 23d of June, 28th of June, 29th of June, and
the nth of July.
Senator Byrd. Was Mr. Sedam questioned?
Mr. Gray. Yes. Mr. Sedam was questioned on the 23d of June,
the 26th of June, the 18th of July, the 26th of July.
Senator Byrd. The Washington Post reported that Mr. Segretti
had named White House aide Dwight Cha]:)in as his contact in si>ying
and sabotaging of the Democrats. Did the FBI question Mr. Chapin?
Mr. Gray. We did question Mr. Chapin, but that information
from Mr. Segretti, I believe, comes from testimony that I should not
be alluding to here, Senator.
Senator" Byrd. Would it not be appro])riate then, Mr. Gray, for
you to supply the committee with the Watergate files before the
committee proceeded any further?
Mr. Gray. I made the offer, Senator B^^rd, earUer, to the committee,
that I would be, and I offer it. I made it in my statement, I was not
asked.
Senator Byrd. Yes; I was here when you did that.
Mr. Gray. Yes; you heard it.
Senator Byrd. And I think that is very commendable of you but
what I am saying is it might be well for the committee to proceed no
further until the files are supplied.
Mr. Gray. Well, obviousl}", I do not beheve that suggestion has
merit, Senator, and I must respectfullN" differ with. you.
Senator Byrd. So that the committee would not have to ■
Mr. Gray. I am here and I am prepared to answer whatever ques-
tions I can answer and if this committee has anj^ doubt at the con-
clusion of its hearings regarding m}- qualifications they should fail to
report me out. It is that clear to me.
Senator Byrd. I understand that.
\h. Gray. Sure.
Senator Byrd. There will be debate on that point. [Laughter.]
I understand the responsibility of the committee is as 3^ou have
stated it, and you stated it precisely. But so man}^ things need to be
supplied, I am just wondering if the committee ought not wait until
it is so supplied.
Mr. Gray. I do not think that many things need to be supplied and
I have a task force set up in the FBI which is ready to work in tra-
ditional FBI fashion and your answers will be provided. Senator, to
the committee.
Senator Byrd. Does the offer of the Watergate files include the
administrative files?
140
Mr. Gray. Wliat do you mean by the administrative files?
Senator Byrd. Buck slips, interdepartmental memoranda.
Mr. Gray. My offer this morning in my testimony, and I think the
record mil show it, is our entire file, ever3'thing.
Senator Byrd. Lock, stock and barrel?
Mr. Gray. Yes, sir. We are very proud of that investigation.
Senator Byrd. Does Mr. Ervin's argument with respect to selected
staff seeing these files apply to the Judiciary Committee also?
Mr. Gray. No, sir; I will not provide these files to selected staff
members. I have stated that I \nll make these files available to the
members of the committee and that I will put two experienced agents
with each member to assist the member, to respond to any questions.
We have a task force set up in the FBI to crank out answers and we
Anil deliver the product to the Senators.
Senator Byrd. The Senator from North Carolina this morning indi-
cated that he had many things to do, and in view of that fact he asked
you whether or not it would be agreeable with you if selected staff on
the Select Committee, which has been established here to investigate
the Watergate incident
Mr. Gray. No, sir; I do not want this done and I Anil change it.
I responded to a Senate resolution and the Senator from North
Carolina was quoting it to me and I said I was glad to comply with
the will of the Senate expressed in that kind of resolution. Senator,
I am making an unprecedented offer to this committee.
Senator Byrd. I am merely asking you whether or not that same
offer applies to the staff of the Judiciary- Committee?
Mr. Gray. No, sir; it does not.
Senator Byrd. Because we on the Judiciary Committee are just
about as busy as Mr. Ervin is.
Mr. Gray. I appreciate that and it is a very important consideration.
Senator Byrd. And I would find it extremely hard myself to take a
look at all of the raw material that you have on the Watergate case.
Mr. Gray. Yes; but, Senator Byrd, you have a lot of questions
there and your staff lias apparently helped in them and I am perfectly
willing — I told you I have a task force set up there to crank this
out — and we are willing to respond to your cpiestions.
Senator Byrd. But your answer is "No," mth respect to selected
staff members of the Judiciary Committee seeing these files?
Mr. Gray. That is correct.
Senator Byrd. While at the same time selected staff of the select
committee — —
Mr. Gray. Thej'' are two different situations because of a resolution
of the Senate. The Senate has expressed itself, and I feel that this is
something I ought to take a position on. You know, I do not know
what the position of the Attorney General is going to be, I just do
not know. I am up here talking.
Senator Byrd. I am merely asking you whether or not you would
offer to make the same offer to the Judiciary that you would make
to the select committee?
Mr. Gray. No, sir.
Senator Byrd. Did the FBI question ]Mr. Herbert W. Kalmbach^
the President's personal attorney?
^Ir. Gray. Yes, sir.
141
Senator Byrd. The files which you have offered to have the Ju-
diciary Committee study, would they include the field office files
on the Watergate?
Mr. Gray. Everything that the field office generated we have. It
all came in the teletype, this was a major special and everything came
here.
Senator Byrd. Did the FBI question Mr. Haldeman regarding the
cash fund maintained by the Committee for the Re-Election of the
President?
Mr. Gray, The FBI did not question Mr. Haldeman and no
lead was ever sent out to question Mr. Haldeman and no recommenda-
tion was ever made to me to question Mr. Haldeman.
Senator Byrd. According to Congressional Quarterly, "In a Wash-
ington television interview Mr. McGregor acknowledged the existence
of a cash fund maintained by the President's Re-Election Committee.
He said no part of the fund, no money from the fund, had been used
for illegal purposes and he repeated a denial that H. R. Haldeman had
authority to approve payments from the fund."
You do not think it would be worthwhile to question Mr. Halde-
man?
Mr. Gray. No, sir; because we in our interviews and our total
investigation had no indication that Mr. Haldeman was involved.
Senator Byrd. Have you had indications that other individuals who
were connected with the Committee for the Re-Election of the
President were involved?
Mr. Gray. I am sorr^^ We interviewed those for whom the leads
were sent out.
Senator Byrd. Wh}^ would it not be a])propriate to tr}- to determine
who authorized the payment from the fund?
Mr. Gray. We think we did determine who authorized the paj^ment
from the fund.
Senator Byrd. Wlio was it?
]Mr. Gray. We feel that, from the interviews we got, that Jeb
Magruder was the individuaLAvho allocated $250,000.
Senator Byrd. Did jou go beyond Mr. Magruder?
Mr. Gray. We talked to other people, the assistant U.S. attorne^^s
did, and the grand jury did, but I do not have access to the grand
iurv testimonv.
vSenator Byrd. Was information obtained from the national security
wiretaps given to Mr. Hunt and/or to Mr. Lidd}^ while thej' were
working at the "^^^lite House?
Mr. Gray. I am sorry, Senator Byrd, I missed the first part of that
question.
Senator Byrd. Was information obtained from, national security
wiretaps insofar as you know, in connection with the FBI wiretaps
given to Mr. Hunt and/or JNIr. Lidd}^ '\\'hile they were working at the
^Vliite House?
Mr. Gray. I do not know, sir.
Senator Byrd. When did the FBI question Mr. Lidd}^?
Mr. Gray. We did not get to question Mr. Lidd}^ because he is one
of the defendants and he would not talk to us.
Senator Byrd. The FBI did not question Mr. Liddy?
Mr. Gray. No, sir. We would have been happy to talk to any one
of those men, sort of hinted we would, but we never were successfuL
91-331—73 10
142
Senator Byrd. Did the FBI question Mr. Sloan?
Mr. Gray. Hugh Sloan?
Senator Byrd. Hugh Sloan, Jr.
Mr. Gray. Yes, sir.
Senator Byrd. When?
Mr. Gray. Hugh Sloan, Jr., former treasurer of the Finance Com-
mittee, CRP, Julv 17, 1972.
Senator Byrd. Did the FBI question Tom Gregory, the college
student engaged by Hunt to spy on Democratic presidential candi-
dates?
Mr. Gray. Yes. sir; we did.
Senator Byrd. When?
Mr. Gray. I do not have that date but I can furnish it for the
record. It was late in the year, though.
(Mr. Gray subsecjuently submitted the following document for
the record:)
Mr. Gray. Our records show, Senator, that Mr. Gregory was interviewed on
December 19 and 20, 1972.
Senator Byrd. Wln^ do you sup])ose it would be late in the 3'ear?
Mr. Gray. I know exactl}^ why it was late in the year because of
the fact that, of all the some 2,200 telephone calls that we had access
to, his was one of those that was not run down early in the game.
There Avas no other reason for it. I asked the same question of ni}^
agents and that is the answer they gave me.
Senator Byrd. Was the FBI aware, before the Watergate trial, of
the $199,000 i)ayment to Mr. Liddy by the deputy director of the
Committee to Re-Elect the President, Jeb Magruder?
Mr. Gray. Were we aware of it before the Watergate trial?
Senator Byrd. Yes.
Mr. Gray. Senator, I will have to check that. I do not know whether
it is — you see, I have access to some grand jury testimony but not all
of it. But I am ver^- reluctant even to discuss grand jury testimoii}^
because of the Federal rules of criminal procedure and I will ascertain
from our records whether we had it through our interviews or whether
it was grand jury. If it was grand jury and we have it, I will so identif}^
it to the committee.
(Mr. Gray subsequently submitted the following document for the
record :)
Mr. Gray. After checking the records, Senator Byrd, I note that the $199,000
paj'ment was not made by Mr. Jeb Magruder. Payment of money to Mr. Liddy
was authorized by jNIr. Magruder and Mr. Sloan made the actual disbursements.
The information about sums of money furnished Mr. Liddy developed in grand
jury testimony and, as I mentioned previously, I do not believe I should discuss
grand jury proceedings.
Senator Byrd. When Judge Sirica interrogated Mr. Sloan, Mr. Sloan
testified that the authority for the payment to Mr. Liddy b}^ Magruder
had been verified b}' Maurice Stans, the chief fundraiser for the Com-
mittee To Re-Elect the President, and checked out w4th Mr. Mitchell,
the committee chairman. Did the FBI pursue this lead?
Mr. Gray. Both of those men — I should not say both, it may not be
a complete answer. But that point was covered, denials were given to
us, I am sure, and I will actuall}'^ check the interviews and get the exact
information that we received.
143
(Mr. Gray subsequently submitted the following document for the
record :)
After checking the record I find that Mr. Stans was interviewed bj- the FBI four
times: Twice on July 14, 1972 and on July 5 and 28, 1972. On the last date he
stated :
He had no hand in political policj' making decisions and that he would receive
information from Jeb Alagruder that certain funds would have to be paid out for
various expenses at which time he would notif,y Mr. Sloan to make these funds
available so normal operating expenses could be paid for.
Stans became aware from general conversations that Liddy was assigned a
"Security Gathering" job and that certain cash disbursements would have to be
made available to Liddy. Liddy's "program" was already in effect prior to Stans'
arrival on duty with the Committee to Reelect the President and Stans was not
aware of any details concerning Liddy's "program." The only time Sloan ever
mentioned cash disbursements to Stans was when Sloan told Stans that Liddy
wanted to make a large cash withdrawal (date and amount not mentioned).
Stans referred Sloan to Magrudcr.
Mr. Mitchell when interviewed by the FBI on Jul.y 5, 1972, advised he had
nothing to do with the financial aspect of the Committee to Reelect the President
which was handled completely by Maurice Stans.
Senator Byrd. Did you ever discuss any matter relating to the
investigation of the Watergate aifak with anyone on the Committee
to Re-Elect the President?"
Mr. Gray. No, sir.
Senator Byrd. With Mr. John Mitchell?
Mr. Gray. No, sir.
Senator Byrd. Or with anyone from the White House?
Mr. Gray. Yes, sir.
Senator Byrd. Who?
Mr. Gray. John Wesley Dean, Counsel to the President, and I
think on maybe a half dozen occasions with John Ehrlichman.
Senator Byrd. Were any members of the Committee to Re-Elect
the President questioned about Mr. McCord or Mr. Liddy?
Mr. Gray. Yes, sir; thej^ were questioned. They w^ere asked.
wSenator Byrd. I onl}^ have about three or four more questions, and
I appreciate your patience and I certainl}^ appreciate the indulgence
of my committee colleagues.
When did you first learn of the FBI's entrance to the Les Whitten
case?
Mr. Gray. I would have to check the exact date but it could have
come to me once again through the teletypes as they come across my
desk and in discussions with the Actmg Associate Director, Mr. Felt.
Senator Byrd. All right. If you will indicate that and also indicate
from whom you first learned of it, would you, please?
Mr. Gray. Yes, sir.
(Mr. Gray subsequently submitted the following document for the
record :)
UiJon reviewing our records, I learned on 1/24/73, from information contained
in a teletype from our Washington Field Office that a Metropolitan Police De-
partment officer working in an undercover capacitj" had advised his superiors that
he had heard that Anita Collins and Hank Adams had been conferring with Jack
Anderson to buy documents stolen from the Bureau of Indian Affairs. This
teletype made reference to Jack Anderson's column which appeared in the Wash-
ington Post on 12/11/72, wherein he reported that his associate, Les Whitten,
had seen many thousands of the documents taken from the Bureau of Indian
Affairs Building. On the morning of January 31, 1973, Associate Director W.
Mark Felt informed me of the appearance of Les Whitten's automobile at the
residence of Hank Adams and of his arrest shortly thereafter.
144
Senator Byrd. Do you think that the case was properly handled
against Mr. Wliitten by the FBI agent?
Mr. Gray. Yes, sir; I do. On the basis of the information that we
have and on the authorization to arrest that we have from the assistant
U.S. attorney.
Senator Byrd. Did you specifically authorize the actions taken by
the agent?
Mr. Gray. No, sir; that is a detail that I would not get that far into.
Senator Byrd. When will you sujjply the information I have re-
quested that you said you would suppl3-, Mr. Gray?
Mr. Gray. When would I suppW it, sir?
Senator Byrd. Yes.
Mr. Gray. Within 48 hours.
wSenator Byrd. I have one final question. You indicated that the
FBI did not follow up political leads.
Mr. Gray. We did not ev^en — there were none even set out that
led into the, as the Supreme Court sometimes says, political thicket.
We did not get into that at all, and we looked at those statutes —
even when we got the first interview from Segretti, Ave looked at those
statutes to see. We did not, j^ou know, just ignore it. It was considered.
Senator Byrd. But you knew that Mr. McCord was involved in the
Committee for the Re-Election of the President when he was arrested?
Mr. Gray. I knew that at 3:45 p.m., Pacific Davlight Time, on
the 17th.
wSenator Byrd. If you did not follow political leads how could you
attempt to find out if CREEP was involved?
Mr. Gray. Well, once we knew w^ho Mr. McCord was we found out
where he was employed. He was caught in a very compromising
situation. He was a strong suspect of havmg committed a criminal
offense.
Senator Byrd. Mr. Chairman. I thank you.
I have no more questions at this time and I thank you, Mr. Gray.
Mr. Gray. Thank j'^ou, Senator BATd.
Senator Hart. Thank 3"ou, Senator.
Mr. Gray, Senator Tunney, in view of the hour
Senator Tunney. I \vi\\ wait until tomorrow.
Senator Hart. The Chairman indicated that we will adjourn until
10:30 tomorrow morning.
Ma}^ I ask, before we leave, which reflects that I am bothered by
your inability to respond yes or no to the question of whether Segretti
was shown FBI reports at the Republican Convention, you just told
Senator B^^rd that Segretti had been interviewed. Now, did you ask,
did the agent ask Segretti who showed him the FBI report?
Mr. Gray. We interviewed him. Senator, on the 26th of June and
he was before the grand jury in the latter part of August and I do not
know what the assistant U.S. attorneys asked him before the grand
jurv.
Senator Hart. Well, that was not ni}" question. What did the
Bureau ask him?
Mr. Gray. No; we did not go ask Segretti
Senator Hart. Why I am bothered is that it was a leadpipe criminal
action alleged in the news and it alerted you to call Dean m the White
House but nothing be^^ond that.
145
Mr. Gra^. No, sir; I made the decision, and I did not go beyond it
because I saw no reason to go beyond it.
Senator Hart. I was sent a note here that I cannot read, I think it
has to do with materials, vnth supplying materials.
When you supply materials, which I assume in the course of the
day have been asked for, and vou have indicated
Mr. Gray. Yes; I have answered several times.
Senator Hart. When you supply the materials could 3"ou do so in
cojiies so that each member would have them?
Mr. Gray. You mean, in response to questions, is that correct, j^ou
mean, questions asked?
Senator Hart. Yes.
Mr. Gray. And to which I said I will respond and supply the
material?
Senator Hart. Yes.
Mr. Gray. Yes, sir; we can do that.
Senator Hart. And if the captions on the materials that you give
us are not informative would you ask your staff to identify the page
in our transcript where the request has been made which produces
that document?
Mr. Gray. Yes, sir. But to do that we are going to have to have
the transcript and this may change my 48-hour promise, my 48-
hour commitment to Senator Byrd. I have someone here making
notes of the commitments that I am making so that we can begin
to go to work on it, but if it is desired that they be related to a page in
the transcript then I am going to have to request that I be permitted
to have the transcript and then go 48 hours from the time of receipt
of the transcript.
Senator Hart. I would not want to trim back your commitment
to Senator Byrd.
Senator Byrd. Mr. Chairman, I think that Mr. Gray should have
the transcript and I think the committee ought to have the informa-
tion that is being requested so as far as I am concerned, the 48 hours
is off.
Mr. Gray. All right, sh.
Senator Hart. Thank you. Mr. Gray, you have had a long day,
I know.
Mr. Gray. Thank you. I liave enjoyed every minute of it.
(Whereupon, at 6:30 p.m., the liearine: was recessed, to reconvene
at 10:30 a.m., Thmvday, March 1, 1973^.)
NOMINATION OF LOUIS PATRICK GRAY III
THURSDAY, MARCH 1, 1973
U.S. Senate,
Committee on the Judiciary,
Washington, B.C.
The committee met, pursuant to recess, at 10:35 a.m., in room 1202,
Dirksen Senate Office Building, Senator James O. Eastland (chairman)
presiding.
Present: Senators Eastland, Kennedy, Bayh, Burdick, Tunney,
Hruska, Fong, Mathias. and Gurney.
Also present: John H. Holloman, chief counsel, and Francis C.
Rosenberger, Peter Stockett, and Thomas D. Hart, professional staff
members.
Tiie Chairman. Let us have order.
Senator Tunne}^
Senator Tunney. Thank you, Mr. Chairman.
Mr. Gray, I want to congratulate you, as others have, for having
been nominated b}^ the President to perform the awesome responsi-
bility of being the Director of the FBI. I personally feel that there
is no agency in Government that is more sensitive to a democracy,
one that can protect our democratic institutions, and, at the same
time, if it is in the wrong hands, could do more to undermine our
democratic institutions. I think we have been very lucky in this
countr}^ to have had a man of the stature of J. Edgar Hoover who
completel}^ depoliticized the FBI. I think if we all look back in history
and see what the state of the Bureau of Investigation of the Justice
Department was like, under a corrupt Attorne}^ General, J. Edgar
Hoover did represent a breath of fresh air. I would certain!}' hope
that his successor ^nll follow in that tradition.
Now, I would like to ask 3'ou a few questions that relate to your
political activities, or lack thereof. I would then like to get into some
structural questions with respect to tne FBI itself, such things as the
way you define organized crime, procedures that you followed, sur-
veillance, keepirg of records, et cetera.
With res])ect to the matters that were brought up yesterda}^ b}^
Senator Hart relating to Mr. Segretti, I coiddn't hel]) but feel that in
answering Senator Hart's questions you were sa3dng that there was a
significant violation of security if, in fact, the newspaper articles,
stating that Mr. Segretti had access to an FBI ?Ae prior to his being
questioned by the grand juiy, were true.
Is that correct, is my impression of your answer correct?
TESTIMONY OF LOUIS PATRICK GRAY III— Resumed
Mr. Gray. No, I don't think that I categorized it in quite that
language, Senator. I categorized it, I believe, as I recollect, as a
(147)
148
breach of trust or a breach of duty to the Chief Executive of the Na-
tion, if this, in fact, occurred.
Senator Tunney. If that occurred?
Mr. Gray. That is right. That is right, if this in fact occurred.
I think we also have to keep in mind, iSenator, and once again I
don't have the newspaper article in front of me and I am not exactly
sure of the verbatim allegations and I ahvavs like to be sure of verbatim
allegations so that one can respond accurately as well as adequately,
but assume, let us assume for the moment that this person Segretti
was briefed by someone on his interview with the FBI. He is being
briefed on what he said to the FBI anyhow, so I don't know how we
get a violation of law in there. No question about it in my mind,
certainly there is a breach of trust here.
Senator Tunney. Would it be appropriate under an}^ circumstances
for auA^one to take an FBI file which was given to them in confidence
for their eyes onh^ and turn it over to a third party, one who was a
subject of the investigation? Under any circumstances would that be
justified?
Mr. Gray. Well, first. Senator, Segretti was not a subject of an in-
vestigation. He was one of the man}^ people who were being interviewed
in connection ^vdth the Watergate. But to answer you specifically, you
know, I think you are as aware as I am that one of the most difficult
tasks faced by the Federal Bureau of Investigation is to maintain the
integrity of its files. I think that one coming lawfully into possession
of an FBI document and then disseminating it, making it known to
others not authorized to see those documents does, indeed 'commit a
serious breach of trust. That is the individual who comes into posses-
sion of it lawfully. On our documents we have all kmds of warning
language, and I, since coming into the Federal Bureau of Investiga-
tion, have been looking into our dissemination procedures because I
feel that it is indeed happening to us, either through deliberate at-
tempt, through carelessness, or through neglect.
The very fiber of our being is to be found in our files, and those files
are sacred so far as we are concerned. But we are plagued with this
problem and we have been plagued with this problem for as long as
the FBI has existed.
Senator Tunney. You see, that is the problem that I have with this
particular case. Did a'ou s])eak to the Attorney General about it?
Mr. Gray. No; I did not.
Senator Tunney. Did you con] plain?
Mr. Gray. No; I did not.
Senator Tunney. Did you complain to the President about it?
^Ir. Gray. No; I did not. It is not a thing that I would take to the
Attorney General or to the President.
Senator Tunney. Well, I believe that you testified yesterday that
as you perceived your responsibilities as Director of the FBI, you
re]:»ort to the Attorney General?
Mr. Gray. That isVight.
Senator Tunney. x4.nd you report to the President of the United
States?
Mr. Gray. That is correct.
Senator Tunney. And anything that you have available to 3-ou
should be made available to them?
149
Mr. Gray. That is correct. But I have a judgment, too, you know.
They are not gomg to let me sit in that position. Senator, if I go
running Avith every item over to them.
Senator Tunney. I understand that.
Now, insofar as presidential surrogates are concerned, do you have
a responsibilit}^, as you perceive it, to make available FBI investiga-
tive reports to White House assistants?
Mr. Gray. I don't know about — you are using surrogates now and
White House assistants. Who are we talking about? Are we talking
about those people who went out on campaign trails?
Senator Tunney. No.
Mr. Gray. Are we talking of men like Mr. Dean and Mr. Haldeman
and Mr. Ehrlichman?
Senator Tunney. I am talking about men who work in the White
House.
Mr. Gray. I am not going to make those available to everybody
who works in the White House but if jon are talking about counsel
to the President, if you are talking about Mr. Haldeman and Mr.
Ehrlichman, the answer to your question is "Yes."
Senator Tunney. Do you make anv file available to them that the
FBI has?
Mr. Gray. Upon specific reqviest from one of those individuals
acting as the agent of the United States, I would, and I engage in the
presumption of regularity which I think all of us ha^e to engage in. I
can't be the head of a bureau in a department of the executive
branch and say, no, I am not going to do this.
There are some things, some areas, about which I am very con-
cerned, and one of them happened in this case, and I testified to it
yesterday. The memorandum of June 19, 1972, that I refused to let
go, the memorandum to the Attorney General and the letter to Mr.
Haldeman — I stated those would be included in the record so that
Senators who are members of this committee can take a look at them.
Senator Tunney. Let us say Mr. Haldeman made a request of you
to see my dossier, would you feel that a^ou were justified in sending it
over to him?
Mr. Gray. No; not without asking him some questions and I
always do, because I have got a trust area and that is a battle of life
everyday. People put pressure on me all the time to take a look at
individuals' files and even where those people are concerned they have
to have a reason. I am very, very nasty about that, I really am,
because I feel very keenly and very strongly about that and I don't
like to be pushed around.
Senator Tunney. Well, I am sure that 3'ou don't like to be, you
impress me that way.
Mr. Gray. Yes.
Senator Tunney. But I would like to know what you would con-
sider to be a just reason for submitting personal dossiers to members
of the White House staff.
Mr. Gray. We don't do that in that frame of mind. Name checks
come over on individuals who are invitees to the White House and
this has been done from time immemorial. That is one way.
As applicants, that is another way that some Members of Congress
have previously been investigated by the FBI, because at one time
they were the subject of an applicant investigation. Still another way
150
is the rare occasion when a Member of Congress becomes involved with
the laws of the United States, and an investigation is conducted.
And let me just say for the record now — and I will not reveal the
information, but I will testif}^ under oath at this moment to trj^ to
persuade this committee — that during this campaign, information
was brought to me regarding an individual, and I said, "Never bring
that kind of information to me again, put it under the tightest lock
and key that we have and do not permit it to get out of that custody,
and don't ever bring that information to me again." I made that
statement but I will not reveal the name of that individual to anyone.
I would sacrifice this position, ^Senator, before I would do it.
Senator Tunney. Nor should you. I don't think you should either.
I think it would be very Mrong for you to do that. But I am trjdng to
get a better feel for what 3'ou feel to be the demarcations of policy
when 3^ou are requested by Wliite House staffers to make available
information in personal dossiers. I assume that there must be such a
polic}^?
Mr. Gray. When you put the question that way, I have never had
a request from anybody in the White House since I have been in this
i:)osition to make available information from a personal dossier because
I don't know really what you are talking about. If you are talking
about that summary memorandum that we prepared under the Con-
gressional Services Unit program, no, that would not be made avail-
able at all. That is com])letely for internal use ^nthin the Federal
Bureau of Investigation. If you are talking about an investigative file
that we have, if there is some reason to make pertinent information in
the file available where we have an inchvidual under investigation, yes,
I would do that. If there was some issue of truth or falsity involved in
that type of a case where there are allegations that have been made,
yes, I would pro^dde the information in order that there be a mech-
anism available for the President to get information and try to make
a judgment. But I would not send over purely personal information
that comes to our files in the form of anonymous letters, informant
information and that type of thing, and I just won't do it.
Senator Tunney. And you won't do it with respect to any person?
Senator Kennedy. Have you done it at all with respect to any
Member of Congress?
Mr. Gray. No, sir; I A\on't do it. I have set forth in the FBI pretty
firmly my policy about that. I don't think there is a member of the
FBI who is in any doubt about that at all.
Senator Tunney. Is this a personal decision that you have made,
or are there certain procedural guidelines in the FBI that were avail-
able to you when you came in as Acting Director that had been set
up by Aour predecessor?
Mr. Gray. They are not procedural guidelines as such. We have the
rules and regulations of the Department of Justice. We have the man-
ual of rules and regulations for the Federal Bureau of Investigation
regarding each of our jurisdictional categories in which we investigate
and the dissemination of re]:)orts that are to be made thereunder.
There are quite a few, but what we are talking about now is the un-
ethical, the hard, field type situation, somebody trying to cut some-
body up "VAdth some inside information, and I am not going to be a
partA" to that.
151
Senator Tunney. Could you tell the committee if there are any
guidelines within the FBI with respect to the accumulation of informa-
tion and the storing of information on individuals? For instance, I
think that you necessarily have to separate people who were under
an active criminal investigation
Mr. Gray. Yes, sir.
Senator Tunney (continuing). From those people who just happen
to be citizens.
Mr. Gray. That is correct.
Senator Tunney. Wlio happened to be participating, w^e mil sa}^,
in outdoor rallies or peace marches or whatever it might be.
Mr. Gray. That is correct, sir.
Senator Tunney. Could you describe to the committee what the
guidelines are?
Mr. Gray. Thej^ are not real]}- guidelines, they are jurisdictional
perimeters that are established bv the statutes of the United States,
and from the day that I came into the Federal Bureau of Investiga-
tion, one of the very first avenues of inquiry that I launched had to do
\nth jurisdiction because I knew this was a problem, and we had a
ver}", very fine paper developed on jurisdiction. We discussed it May
23 and ]May 24 at our Quantico meeting, and I have given explicit
instructions throughout the Federal Bureau of Investigation that we
investigate onlv in connection wdth our jurisdictional responsibilities.
Nov/ that takes care of us going actively after someone. But we
acce]:)t information of all kinds that comes in, and here it is the judg-
ment of the Bureau supervisor and the officials trained in accordance
with the Bureau's Manual of Rules and Regulations as to wdiether or
not to put that in the file. That would be a general file. That is not
the investigative file, and that is actuall}^ the wa}^ it w^orks. We get an
aw^ful lot of anonymous letters addressed to us regarding our own peo-
]i]e, and every one of those is followed through b,v the Inspection
Di\'ision of the Federal Bureau of Investigation. We treat ourselves
very roughl}' and, I think, rightly so because of our position in our
society, than we do with all this other mass of material that comes in
pertaining to j^ersons outside the FBI, and we i)ut it in the file.
Senator Tunney. Do you know how many names you have in the
files that you have dossiers on?
Mr. Gray. Senator, I don't use that word "dossier." You know,
every time you use it I am going to respectfully reserve the right to
say
Senator Tunney. I will not use it.
ISIr. Gray. I don't use the term ''dossier." I know what the dic-
tionarv definition is but we don't talk about it in terms of "dossier."
We talk in terms of "files."
Senator Tunney. Fine. [Laughter.]
Can you tell me how many people in the country have files:
Mr. Gray. I can tell you with regard to fingerprints. With regard
to our identification records, there are roughly 60,000 individuals
identified in our Identification Division and of those, roughl}' — I am
sorry, 60 million.
Senator Tunney. Sixty million.
Mr. Gray. Sixt}^ milhon, and of those, roughly 20 million are
criminal and the other 40 million are civil, and if I have got my
figures reversed, I will correct them for the record.
152
(Mr. Gray subsequently submitted the following document for the
record .)
Mr. Gray: Yes, these figures are correct. I have checked and as of February 1,
1973, 20,610,183 people were represented m our criminal fingerprint file and 40,-
143,023 people were represented in our civil fingerprint file.
Senator Tunney. Now, it is my understanding that —
Senator Kennedy. Forty million files on citizens?
Mr. Gray. No, sir; identification records.
Senator Kennedy. Noncriminal?
Mr. Gray. That is correct. Let me make sure, Senator Kenned}^,
now that 3^ou are raising it, that I have the right number. I have a
card on that here somewhere. We will give you the correct figure.
Senator Kennedy. If the Senator Avould yield, could you give us a
breakdoAvn on what the 40 million
Mr. Gray. I would be happy to do it because we have been meeting
with Congressman Edwards' Judiciary Subcommittee No. 4 and
giving them every bit of information that they want regarding the
Identification Division, the National Crime Information Center, the
com])uterized criminal histor}^, and I will give j^ou these numbers
right now.
Senator Kennedy. If the Sanator would jdeld, just on the non-
criminal. I would be interested and perhaps j^ou would submit the total
for the record. But could you give us the noncriminal 40 million
Americans that you have files on?
Mr. Gray. 40,143,023. Those are civil. Those come in all kind of
applicant type cards.
Senator Kennedy. Just break it down.
]Mr. Gray. That is it.
Senator Kennedy. Wliat is it?
Mr. Gray. 40,143,023.
Senator Kennedy. Tell us how many applications are for passports
and how many are being surveilled.
Mr. Gray. I will have to give you that information.
Senator Kennedy. Can j'^ou give it to us?
Mr. Gray. Oh, certain]3^
Senator Kennedy. Then give it.
Mr. Gray. I v^'ill give it to j^ou, I would be happ}- to.
Senator Kennedy. Does your assistant have it?
Mr. Gray. No, sir.
(Mr. Gray subseciuently submitted the following document for
the record :)
Mr. Gray: I am submitting the following document for the record. (Chart:
"Types of Fingerprints on File" dated February 1, 1973.) With reference to the
60,764,535 fingerprint cards representing the category of Governm.ent services,
I should hke to point out that included in this figure are 42,321,146 Mihtary
prints submitted by the various branches of the services, 17,529,220 Civil Service
applicant-type prints, and 914,169 Coast Guard prints. The category of Miscel-
laneous applicant cards consists primarily of applicant fingerprint cards sub-
mitted by independent U.S. Government agencies, such as Atomic Energy
Commission, Central Intelligence Agencj^ and the like in connection with employ-
ment applications and some applicant-type fingerprint cards submitted on
individuals employed in defense industries. These files do not contain fingerprints
of individuals seeking passports as we do not receive such fingerprints. Further,
these civil fingerprint files ai'e not utilized as a means of surveillance of the
153
individuals who are represented in this file. It is interesting to note that during
the last fiscal year (July 1, 1971-June 30, 1972) 13,640 individuals submitted their
fingerpx'ints for inclusion in our files for personal identification purposes.
M'lSW-U- l-l
...-.^.^-2^^.^^-:, r^^^i^^,^^- ■'^il'tlllifrlllii
TYPES OF FiNGERPRlNTS
ON FiLE
'I'll 1^ j^ jijj ^^J^i^^^Ll^l]■MJ■jHJV^^j^^y;^^^*ww'T?^^^i■iJ^!J^^^y^^■;s^»j^^^|■J]|^i^ll^)^^i^jJ^»(^i^ ■
TOTAL:
159,926,088
FEBRUARY I, 1973
luim
5.?7i,171
PEIiSOH.U
liiiKTiricvnoK
mmn
AUUS
16.711.535
^ HBliljg
CRIMINdS UNO
SUSPECTS
GdVERNMiNT MISCEUtNESUS
SEimCES APPlfCAHIS
(liclidiig Military) (InclDdin;
Delciisi letiustry}
ESTIMATED PERSONS REPRESENTED:
For th» 69,048,205 prtnts in the criminal fiU ...•*.
Fer th» rvmoining prints totoling 90,^77,883 all of wKich ore in the civil file
20,410.183
40,143,023
TOTAL ESTIMATED PERSONS REPRESENTED 60 75j 204
FBI IDENTIFICATION DIVISION
.aani
Senator Kennedy. You gave it to the Edwards committee.
Mr. Gray. Because they were right there in the Identification
Division, but I don't have those figures with me today. They came to
visit us, Senator Kennedy.
The Chairman. That inchides apphcations for Federal jobs; is that
correct?
Mr. Gray. All kinds of civil matters other than criminal matters.
Senator Eastland, and they could even be people who are being finger-
printed in States under State statutes, you know, for State employ-
ment or State licensing, that type of thing.
Senator Kennedy. All I am askmg is just for a breakdown.
Mr. Gray. I will give jou a breakdown.
Senator Hruska. If the Senator would yield just briefly, those
totals include fimgerprints voluntarily submitted by civilians who
wanted their fingerprints on file?
Mr. Gray. Yes; it does, Senator Hruska.
Senator Hruska. Could you give us a breakdown on that when
you give us the figures?
Mr. Gray. Yes, sir; I would. There are quite a few of those. Senator,
voluntarily submitted. One need — may I say, Mr. Chairman — one
need merely go through an aircraft disaster and see how extremely
valuable that fingerprint file is; that is just one specific example.
Senator Tunney. Mr. Gray, it would be my assumption that these
files would contain information that would be as scant}' as just a
154
fingeri:)rint, u]) to a voluminous file containing what informers have
told FBI agents about that jierson.
Mr. Gray. No, Senator Tunne}^, what I am talking about right now
that I gave you the numbers on are identification records represented
b}^ a fingerprint card.
Senator Tunney. I see; those are just the fingerprints?
Mr. Gray. That is right. Then in connection with that is developed
what we would call the arrest records and I would submit for the
record, as I submitted to the PTouse Judiciar}^ Subcommittee, materials
that will show you exactly what are contained in the Identification
Division. That is separate and distinct from the Files and Communica-
tions Division, and I welcome this opportunit}^ to explain this
distinction.
(Mr. Gray subsequent!}^ submitted the following document:)
Mr. Graj-: I am submitting the following document for the record (simulated
FBI fingerprint arrest file). You will note that the identification record itself
shows that Frank Jones has been hngerprinted five times. Appearing in chrono-
logical order on the record are the identit\^ of the contributor of the fingerprints,
LE«VE BLANK
TYPE OR PRINT ALL INFORMAT'ON IN BLACK
//(je rfofi/^ <^c/<;^d- >-</
IBl LEAVE BLANK
^^/7^/<^
STATE USAGE
f A
'-"'t ^' I""" Doa
/-i -A^-^r"
f^v;^ J-
£^^
0»1E IBStiTtC' Of 'ECE.-IP 00^
4f
Amz,
/D
j^cxc r^<, zi^.
u
LEAVE BLANK
^ U-O Wn W Q^Uf.
JJ-
• iNiL oiiro:.!
L srcuHT. HO SOC
1"
^
C»U'lClH
111
^.,|V ,
NCIC CLASS fPC
i I i ! M I I I j-m
' "^■"•^'
'm,.
0$i^
:z
l-fsaas^^fei-
1^'/"'-
#1 M
Vi-tfT «ix'» (iMceiT^TMt" i''i^T*M(oow> - ^ *!;V"\Vi
\.((T THVPUB
,;iJ|P|r
BI&HT>OtH fl-Cm TAKEH Ill*Utlli»«p01L» ^S-aJ-^
155
the name of the individual used at the time of arrest, the date arrested or received
at the place of incarceration, the charge and the disposition if available. Each line
entry appearing on every record is supported by a fingerprint card and the infor-
mation contained on the record was obtained from the fingerprint card which was
submitted by the arresting or receiving agency. The fingerprint cards are retained
in the individual's hie. You will note there are hve entries on the identification
record and only four fingerprint cards in the file. One fingerprint card, in this case
that submitted by the DC Court of General Sessions, Washington, D.C., dated
2-10-66, is filed bj- fingerprint classification in the criminal searching file. In-
coming fingerprint cards are searched by fingerprint classification against this file
in order to effect identifications and gain access to fingerprint records such as this
simulated record which I have presented. Also contained in this simulated record
is a sample disposition form which we furnish to every fingerprint contributor for
the purpose of reporting final dispositions to us. The only t3-pe information re-
tained in this file is obtained from fingerprint cards or related fingerprint forms
such as the disposition sheet. These fingerprint files are completely separate and
distinct from our investigative files.
FEDERAL BUREAU OF INVESTIGATION. UNITED STATES DEPARTMENT OF JUSTiCt
WASHINGTON, D C 20537
PHOTO AVAIL,
A=U> [-J [— ]
IF AVAILABLE, PASTE PHOTO OVER INSTRUCTIONS
IN DOTTED AREA
(00 MOT USE lT*PLEil
VNCE PHOTOC««PH uir BECOuE OCTkCHtD IMCMOTE NAME.
DtTE TAIEM, FBI hUuBER CONTRIBUTOR AND AftRElT HUuBER
Om bE'ER^E l'0(. »HETMER *IT*CMtO TO (IhCERPRIMT C'RDOI
iuB-iTTriii.»ita.
IF ARREST FINGERPRINTS SENT FBI PREVIOUSLY AND FBI NO UNKNOWN.
FURNISH ARREST NO DATE
STATUTE CITATION isee .hitruct-ox mo »i C(T
2.
3.
ARREST DISPOSITION iiE£ ihiuuctiOm mo ii ADN
EMPLOYER: IF u. i coverk-emt. imoicaie iPtciFic acemct
IF MiLIT*RT. LliT BBiMCM OF SERVICE IHD itfilAL NO.
INSTRUCTIONS
, UMltSJ OTXtRBISE PffO'lOEO BT RECULkTiQN IM TOU* tT«T; f\>*'A«r
*BE TO ei luewiTTEO OiRtC'LT TO FBI iCENT'FiCaTicm D'vli'ON FOR"»l
MEr'UFL* FOR -OH EFFECTIVE StH'iCE.
IMSEi
■ ARRFl'
IMTI ytouLO BE
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Ti^e
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ORD FOR AIL OrwER IMTEREITEO ACEMCiEi 1^4 BLCC^ B*-0" WE CO-^LdE
UA'LINO AOOREil IMCLUO'mC ZIP CODE.
, TYPE OR PRIMT ALL tMFDRu4TI0M.
. MOTE AuPolAllOKS iW PRO°FB FIMCE» BLOCKS
. LIST i^iNAL OtlPOMTlOS IN PLOCK OM FROMT ii3E IF NOT NO* AVlrLABLE, lUB-
Mi? LATER 0'( FBI FORu R-S-; F0» Cf'*'LETICN OF RECORD I' Fi1»L OISPOM-
TiOM Mm (ViiLABLE «<0" PaE-THi»L OB leCE'.T^NC ACEMC OllPOMTlOM «. «..
eELE»5EC. MO FORMAL CH»CCE, EA'L. TJHMEO 3*ER TO. tN TfE AR»EIT CliPOSL
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'REiMOMS ABE LEC'3LE FoLLT ROLLCOAmO CLASKFUBLE.
, CAUTIOM - ChECH P0> OM FPOHT IF C*tJTl9M iT»I£MEH» IMl?tC*TEO. BAllS FOR
CAUTiOM (ICOl MUST r.ivt REAJON FOS C«liTIOM .. ... AP-EO AMO OAMCEROUJ.
lOICIPAL. E.-:.
MIICELIAMFOUI ML'MBEP ("MUI ■ IKOULO IMCLUOE VCN MUuBERl »i MtLITART
iERVlCc. PAISKORT AMC/OB "tTtBANl »0UIMIIT«»T(0N llOEMTIfT TYPE OF MUu-
FROI'IOE ITATUTf; CITAtlOM. lOEMTIFTINC SPEC'FIC ITATUT! Iit.-e't - PL •••
PENAL L*"l »MD CRIMINAL CODE C'TATIC"* WCLUOiMC ANT lOB-iECTiONl.
If ORUATION REOUCITCP IS EM(NT>
OCCUPATION
^±/£j_^dLk±^
RESIDtNCE OF PERSON FINGERPRINTED .
SCARS, MARKS, T((tioos. ano amputati/Sns sm;
SEND CCPY TO;
BASIS FOR CAUTION ICO
DATE OF OFFENSE 000
MISC. NO. MNU
SKIN TONE SKN
ADDITIONAL INFORMATION
■0-249 (REV. 4 26 71) CCPOiieTl 0-437-611
REPLY DESIRED' YES NO
□ □
(BI-PLT WILL BE SENT IH ALL CAIES 'r SUBJECT ftiUfD TO fl£ •
TELEP.ICNt REFl
TELEPMOME MO, *«0 APEi
□
LEAVE BLANK
LEAVE B:.ANK
156
Senator Tunney. Well, now with respect to the Records Division,
where you keep fuller information than just the fingerprints, how
many files do you have there?
Air. Gray. I don't have that figure offhand. We will have to provide
it. There are a substantial number of files.
(Mr. Gra^y subsec[uently submitted the following document:)
As of March 1, 1973, there are 6,426,813 files.
Senator Tunney. Now, to what extent is this information stored
in the National Crime Information Center data bank?
Mr. Gray. This is very, verv complicated. The National Crime
Information Center itself as of February 23, 1973, active records in
the NCIC data bank are as follows: stolen securities, 1,331,099;
stolen vehicles, 782,983; stolen articles, 616,123; stolen guns, 572,232;
computerized criminal history subjects — now here we are coming to
irA'.v BLANK
TYPE OR PRINT ALL INFORMATION IN BLACK
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BICMT rou* FiN&EKS TAKEM JIMILTWEOUILT V ~
157
people — 288,207; stolen license plates, 222,976; wanted persons,
123,358; stolen boats, 6,490; and the grand total is 3,943,468.
Senator Tuxxey. \Miat is the statutor}' authority for the National
Crime Information Center?
Mr. Gray. That is the Federal statute wliich charges the AttorncA'
General of the United States to maintain and keep such records, and
it is, I think, section 534; but my memory may not be correct, I can't
remember the title, but we can certainly submit that for the record.
(Mr. Gray subsecjuently submitted the following document for
the record:)
Mr. Graj^ The authority for operation of the XCIC is derived from Title 28j
Section 534, U.S. Code, which provides:
"(a) The Attorney General shaU —
(1) acquire, collect, classify, and preserve identification, criminal identifi-
cation, crime and other records; and
FEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF JUSTICE
WASKINGTON, D. C, 20537
IF AV.>.LJ3L£. ?53"= s-'OTO 0VE5 INST^LCTCIS
IN OOTTEO aB;«.
SINCE PMOTOCBiFW ii»» BECOMC OITlC^f P isaCiTE IPA-E
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FuflNlSH ARREST NO _ OATC — —
STATUTE CITATION Iti Hia*,!: o*-u '. CIT
1.
2.
3.
IBE IC »E iU»»'T-SO 0-JECn.T TO FBI OEjtTinc»r«. otBiuw. FaB»»ao m,
UEOIBTELT FOB i*3iT EFFtCTI*E JEBviCE.
!. FWOEBPBIKIS SNWLC BE SUB^'TTEO Bt iBBElTiwC kZ-l^d Qnlt 'uutTl^t
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TICBI BLOCK FBO'lVtO ON tnil WOE-
i. HBFE CEBTI
iBBEiSiWi »BE LEOiBlE FuLLT BO'.tEO bnB CLBlilFlBBLE.
ARREST DISPOSITION !■! -
3^
>-5-
OCCUPATION
RESIDENCE OF PtaOON FiNGEfiPRihTED
SCARS. MARKS. TATTOOS. AND AWP'JTATIOhS SV.T
BASIS FOR CAUTION XC
C*UTD» - 0£C« M* W *90«T 1* C*U»'(W JT»TI
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lES'iCe, P*1S«>IT *HtVO« vjTEilMti »OMimSII»*TW< llOfKTtFT TYPE OF MOM-
rnrmt jtivjte cit4tk^, iBEttfiFttNC vtonc statuti t.«-»i. - pl (••
f £>.»L L«r; M.& C«i«W*l. COOE CIT*IKW idCLUC-C U*1 SUiiECTlOni.
4LL tN'CSxiTIOK R(0(JEST«0 '1 ElSH^Ti
ZifiO COPY TO
REPLY DESIRED'
□ □
iBEFLT Wiil. ^E iENI IM tlL OiE J '= SuSjECT 'Ouvp TO BE -».«<TESi
(F COLLECT wise OB COILECI Tti.£PH5Ht »*PL'
reVBEO. mWCATEMEKE ITIREIESTOH tU. U-X^hO^ 3ECE»tE5i
WBE R'PLT TELEPHOHE BEFLt TELEPMOHt i-O ^"0 »»€* COBE
DATE OF OFFENSE
DOJ SKIN TONE SKH
leAVE 31ANK
MISC. NO. mm;
ACS TIONll INFGRMATICN
UAVE 8L«m<
F0-2B9 IREV. 4 2e 7;>
CFO : ler: O - 437-Sll
91-331—7;
-11
158
(2) exchange these records with, and for the official use of, authorized
officials of the Federal Government, the States, cities, and penal and other
institutions.
(b) The exchange of records authorized by subsection (a) (2) of this section is
subject to cancellation if dissemination is made outside the receiving departments
or related agencies.
(c) The Attorney General may appoint officials to perform the functions
authorized bj* this section."
In addition, with respect to the dissemination of criminal history records,
Title II of Pubhe Law 92-544 states:
" * * * The funds provided for Salaries and Expenses, Federal Bureau of
Investigation, may be used hereafter, in addition to those uses authorized there-
under, for the exchange of identification records with officials of federall.y chartered
or insured banking institutions to promote or maintain the security of those
institutions, and, if authorized by State statute and approved by the Attorney
General, to officials of State and local governments for purposes of emplo3-ment
and licensing, any such exchange to be made only for the official use of any such
official and subject to the same restriction with respect to dissemination as that
provided for under the aforementioned appropriation * * * "
Senator Tunney. To what extent is the information verified before
it goes into the bank and to what extent does it go in in raw form?
Mr. Gray. As far as the computerized criminal histor}' is concerned
that is an entirel}^ new concept that we are developing as a subsidiary
LEAVE BLANK
TYPE OR PRINT ALL INFORMATION IN BLACK
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159
under the National Crime Information Center .We are developing; that
in conjunction with law-enforcement agencies throughout the Na-
tion. We have an Advisory Policy Board made up of senior law-en-
forcement officials from the various regions who are elected b}' the
members of the law-enforcement community in that particular region,
and they come in and meet regularly and establish policy. And in the
computerized criminal history, abcut which I will submit detailed
documentation for the record to show you what this really is and ex-
plain it to you, we have some rather tight and stringent standards
that do not exist today in the manually operated sj'stem. You have
to think in terms of our Identification Division which I discussed a
little earlier, which is all a manual system; you now have to think in
terms of a computerized criminal history system which is computerized
and is over in the Computer Systems Division and there are very,
very tight standards for the insertion of information into a compu-
terized criminal history. This is not the drop-in type of thing. John
Doe wTites us and sa3-s that somebod}' is doing something and we-
throw it in a file and forget it. This is not that type of system at all.
This is a system designed and geared to accuracy.
Let me go to the specific question that you asked which is one that
the Bureau has battled with for a long, long time. You really are talking
about the record of dispositions in cases, the arrest record. You take-
a look at an arrest record of an individual. The far right-hand column
is the disposition column. Wliat jou are interested in realhr
FEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF JUSTICE
WASHINGTON. D. C, 20537
PHOTO AVAlLASLfr
n □
WSTHUCTIOMS
IF ARDEST FtNCEWPRINTS SENT FBI PREVIOUSL* AND FBI fW UNKNOWN,
fURNISM ARREST NO ^ DATE
3 piHctiriwii inoiji.t> •! y.t
riiHllOHlw.t <nt«C( tXOULOIO^^K VUtMTKOI' 01
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ARRtSI DISPOSITION >iti i-i<«uc>tox hl ^> ADN
Ill WCl-LO IMClimi HJCM UUNBttt M t-LITWW
IT(«4H1 IDMIIItraotlON flOOlllfT TTfl OF mt.
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t CiTlTIOH inCLUMM wn MIMCTKML
OCCUPATION
SEND COPT TO
nCSIDEMCC or person riNCERPRINTEO
SCiWS, W*RKS TATTOOS, ARD AKPUTATtONS SWT
REyLY DESIRED' YES
__^^^^__^^ a^
NO
□
«]ICI FOl-HP to (t ■IHTMI
'□' '"□"""
-(■ir-ir
B*5tS FOn CAUTION ICO
(u unoio"" fitciuaw.
lEiTPMOHf «o. MD mm ••«
BATE OF OfFtnSE DOO
SKIN TONE SKN
LEAVE BLANK
Wise Ita. WfjU
f D M9 Wn. *4t 7U • OP* : 19T1 0 • «
INFORMATION
I-tH
LEAVE BLANK
160
is what lias been the disposition, and we don't know the percentage of
those entries unthout disposition. What we do know is that we, and
the enth-e law-enforcement communit}", have been working mightily
to insure that dispositions are submitted and that we have disposi-
tions, and when we send out an arrest record it contains information
that advises the recipient to clieck with the originating law-enforce-
ment agency for any questions about this because what" we are, Sena-
tor, is a repository. But we do have some policy exhortations that we
make, and this is one of them, to get the dispositions in.
Now, within the National Crime Information Center are elements
in the criminal justice system that eventually will have a terminal so
that when an individual has a court disposition that court will come in
with that disposition, the correctional institution that receives that in-
dividual will come in with that fact, the parole and probation system
that receives that individual will come in with that fact. That is a
long way down the road, but that is what we are working for in the
manual system.
(Mr. Gra3- subsequently submitted the following document:)
By way of background the Attorney General of the United States on December
10, 1970, authorized the FBI to develop and implement a program for the inter-
state exchange of criminal history records through the National Crime Information
IE«VE 9l«NK
TYPE OR PStNT AIL INFORMATION IM 3LACK
15! LEAVE BLANK
S^<^^7^-C,
Kit f*-^t-i<y< ^ -
;-.-jt ;p T.-Ei.:: r>r,A
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161
Center (NCIC) which operates a telecommunication network over dedicated
lines to criminal justice agencies in each of the 50 states, 32 metropolitan areas
and some Federal agencies.
The Computerized Criminal Historj^ (CCH) File is now one of the eight files
in NCIC. The other seven files relate to wanted persons and stolen property. The
purpose of CCH is to speed up the criminal justice process. A more rapid ftow of
criminal offender information can bring about more realistic decisions with respect
to bail, sentencing, probation, and parole. For over 4S years the FBI has been
exchanging criminal history information with police, courts, and correctional
agencies in the form of the criminal identification record using the United States'
mails. The NCIC system offers a more efficient and effective means of handling
this essential service. Statistics have demonstrated that our crime problem is
substantially the criminal repeater. Our police, prosecutors, courts, and correc-
tional agencies need to know the complete, up-to-date ci-iminal history of an
offender if they are to arrive at intelligent decisions.
The ecu record is segmented to include identification information concerning
the individual, as well as available and significant data concerning arrests, court
dispositions and custod3Vsupervision status changes following conviction.
The ultimate concept of NCIC is that there will be a national index to criminal
history records of individuals arrested for serious or significant offenses. FBI
studies have shown that about 70 percent of rearrests will be within the same state;
therefore, an offender criminal history file, in scope and use, is essentially a state
file and a state need. There is, however, substantial interstate criminal mobility
which requires sharing of information from state to state. A national index is
required to coordinate the exchange of criminal history data among state and
FEDERAL BUREAU OF INVESTIGATION,
WASHINGTO
UNITED STATES DEPARTMENT OF JUSTICE
H. 0. C. 20537
PHOTO AVAILABlEf
□ □
tF AVAILABLE. PASTE PHOTO OVER WSTHUCTiONS
m DOTTED AREA.
(DO HOT UlE ITA.F'LEtl
VMCt PKOTOtBiPM H*r BtCPM( OtT/CMtO IWDCC«tt MtMt,
DltE T*t[H. rei NU>-BER CONTVittJTOH Jk-tD IK^EST Hllii«FI»
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, FIKCIffStKTJ XDULP St WiewiTTED FT ABKCSTIWC AygtC* 0M1.T fHULTlPLF
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w*.iI;NC «3DaE» tNCLUDIMC 11^ CCOt,
rF APREST FINGERPRINTS SENT TBI PREVIOUSLY AND TBI HO l-N'<fOWN,
FURNISH ARREST NO D.'.TE
STATUTE CITATICi^ iKe iwtTsucTiON mo ii CIT
1.
2.
J.
ARREST DISPOSITION lUE ihstrucT'Ommo. :>) ADW
EMPLOYER: iF u s oo-jfu-e"' iHDiCiTi specific .cjxc.
IF MILIWrT, KiT 6>[iMCH OF ilFv\Ct UiO SERIAL hC
OCCUPATION
RtSIOENCE OF PERSON FINGCRPRfSTtU
SCARS. MARKS, TATTOOS. AND AMPUTATIONS SWT
BASIS FOR CAUTION ICO
DATE OF OFFENSE DCO
SKlH TONE SKN
MISC. NO. MNU
A0DtTtON«L INFORWATION
fO 249 (REV 4 26-71) *> CPO : J97I O ■ 437-611
4. HC'.Z Uif^JIATIOHStH PrOPES FiKCEt ftLOCkt.
i, -^in Fl».«l D«tfOMTiOM IN ttOC« Of FIOUT Wg* IF i^OT MC* l-^i'lalLC. iUI-
kli l,*Tt« OH FB' rOBu S.U FOh C0M»l.t"Ov 0* "CCtWD. JF *l*i*t OtSPQU-
TOK Hi- *VA;L*^Lt »<0" "BE TBiA^ OJI .ascrmc ACfC" O'.POliTIOM, •. ».
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WIC'DJiL. ETC.
t. MrlCEt^AMEOUt HVMBEIt [HNLV - SHOULD 'fiClUOE UC* w'JMBCBl Mi MUTABT
irRVICE. P*VS*nBT AMVOK VEIEBANS «t)W'r«ISTItAT;3K lU'CMTiFT T1PC Of MUN-
» PBO'TJE ITXTUTE CIT*ltOW I9EMTIFT1NC IPCOFlC l'*TUTE {■••>«U . PL Im .
P£«»L lt»l *ODC»IMWAL CODE CITATtOM iMCLUC'l^ ««' UiS ICCTIOMS.
IP 11', INf 0CU»1I0» HFCWESTED 1^ ElJEKTIJkL.
5lUo COPY TO;
RFPLY DE.-lHtD'
□
■"ifL^jnite^iEMT -rf *'.L C*-eiiF MJajtCT tOL-O TO EE
* COLLECT «ief CM ;0L- tCT TIlIPrtUiE BEPIY
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TSlEVMOME RFPlT TELEPt^OKE MO aHC iK£» COCE
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L^AVE bl4jvf.
)-t'AVE eiAhX.
162
Federal jurisdictions and to contend with intei'state criminal mobility. These
considerations give rise to the "multi-state, single-state" concept. NCIC/CCH
will maintain an abbreviated or summarj^ record (index) on single-state offenders
and a complete detailed record on multi-state offenders.
Entries (except Federal offenders which the FBI will enter) into the CCH file
will be made from the state level with each entry supported by a fingerprint card.
Should the state agency not be able to identify a fingerprint card in its state
identification bureau it would forward the card to the FBI which would conduct
a technical fingerprint search in an effort to identify the individual with an existing
CCH record from another state. If no identification is made, the submitting state
would establish a CCH record. If an identification is made, the submitting state
would update the existing CCH record with this arrest. Should this latter action
have the effect of creating a multi-state record the abbreviated national record
would be replaced by a complete detailed record.
Currently the national file contains the complete record and will continue to do
so until such time as all states develop essential services such as identification,
information flow and computer sj'stems capabilities. The CCH Program will be
continually evaluated, looking toward implementation of the single-state/multi-
state concept.
The CCH Program was initiated on-line through the NCIC system in Novem-
ber, 1971. Currently the states of Arizona, Florida, Illinois, New York, and Penn-
sylvania have supplied to the FBI computerized records for the national file. In
1,1
^0^
Vt^
K-«<(R<-v. R.2<»-7i) FINAL DISPOSITIOK REPORT
Note: ThJK vittil rrport must be prepared on each individual whose arrest finRerprints have been forwarded
to the FBI IdrntiTication Division without final disposition noted thereon. If no final disposition is avail-
oWo to .irrestinp agency, aleo obtain subject's riRht four finger impressions on this form, complete left side
nnd forward the form when case referred to proisecutor and/ or courts. Agency on notice as to final disposition should complete this
form and suhmii to: Oiiector, FBI, Wojhinqton, D. C. 20537, Allenlion: Identification Division.
(See inslnirtions on reverse side)
FBI No.
IF KNOWN
Nome on Fingrrpnn: Card Subr.ntl.''ii tr. F\'A
Last F^r^l Middl'-
MU3T COftHeSPONO WITH NAME ON
ARREST FINSERPRINT CURO.
If FBI No. i:nl<nn\Mi. pumi'ih:
Date of Binh MOMTM- PtkV- VeAI» .Sen
cl«;rcnl.on IF KWQWN-A5 gUOT^O 9Y fSI
State BureRu No.
IF APPLICA&LE
Contributor of FinRcrprnt^
SPECiflEN FINAL
AGEMCY &ue>iirriNa *,nRe%r ritiiaeuMtiKT cars
(GiviE OOHPLCTE ADSOSSS lUCUtOtNb Zip COBe)
Final r>iRposition & Date
(If convicted or subject pleaded guilty to lesser charge, includa
this modification with disposition.)
I. iNcuJoe riMfti. DisposmoN 4 o*.Te por.
GNCH OFFEMSE CMARGSD &r ARAEST.
*, INOICATE TYPe OP SENTENCS IMPOSED t
e.o., coNSEomvs, concurrent, prpsation,
ETC., IP APPLICABLX.
Arrest Nn.
AS APPEARS ON
AKRESr FlMGCAKtIur CM9
Date Arrested or Received
MC*(TM - DAY- YEAA
Offenaes Charged at Arrest
OFPCHSEft MUST Be SJJvte AS THose
APPCARitM OH ARREST R»«6eRPa!Mr CARP-
This Form .Sulimitted By:
(Na.Tie. Title, Agency, City & State)
OFFIC£R. OF AfflZNCY SUBn^im»a PiWAU REPORT.
Ul^r IN IX»J}SR SMMM AOG^E.
'osiTioN mm
Signature
litle
F] COURT ORDERED EXPUNGEMENT:
Return yVrrest Fingerprint Cord to Contributing Agency;
Certified or Authenticated Copy of Court Order Attached.
^ight Four Fingers Taken Simultaneously
' IP KjOCK. IS OlECXeO. MAKS CERVAlM THAT
oeimpiep or authenticated copy of court
OPOrR IS SECURELY ATTAOieo TO THlb FORK.
ARRESTIMQ AQENCY MUST OBTAIN
OF SUSOeCT ON TWIS FORM. ALL
THIS FORM MOT TO BE USED IN
f«GH
FOUR FINGER ItlPRESSIONS
IMFORf>^ATlON REOUeSTSD IS eSSCNTlAL ,
-leU OF ARREST FINGERPRINT CARO.
163
addition, the FBI has been making entries on Federal offenders who have been
arrested since January, 1970, including entries for the District of Columbia. As of
February 23, 1973, there were 288,207 CCH records.
I am submitting the following document for the record which will furnish de-
tailed information concerning the NCIC/CCH Program. (A paper entitled "Na-
tional Crime Information Center (NCIC) Computerized Criminal History Pro-
gram, Background, Concept, and Policv As Approved bv NCIC AdvisoryPolicy
Board, September 20, 1972.")
* CM 1»J1 0— 4ia-«JJ
1-4 (Rjv. :-20. 71)
HASTEX
UNITED SVATSS D=?.4RTMSWr O? JUSTSCS
3-1-73 ,206' bj
TKe fi!!nvving F8I feci.iJ, NUMBER .305 9(4 C
Infcrroction shcvvn on tliis Ideniificriti.rri P.ecjrti tsprssents dafci
VvilEP.v L>iSFOS!riC.;i !'• f>:OT SivO'VM OS FURT;;'"' EXPLAl-i.'.
Diiiki'u, co.v.MUNiCA.'t WITH A; f.;cv coriiKicL'YiNC T,:o
, is furnlsliad FOR OrFICIA!. USE ONLY.'
fvenish'^d F3! by fingerprint contributors.
HON OF charge; or risfc-sition. is
COf~«:5'-/TC» Of
HAMZ A«0 KyvSE.'!
Asafsua o«
RECEIVED
CKABGC
O.iKXmOH '
1)C Crt uf Gen
Frank Jones
2-10-6G
inloxicatioii
prob 6 mos
Sessions
Wash IX
DC Jail
Fraiik Jones
7-19-58
burg H &i riot
VVa.sh DC
#105013
I'D W.ash DC
Fraiil-: Tliomai;
Jones #231895
2-26-69
;ceep & selling
& CDW (gun)
released
PD Ball Md
John Coleman
#04.507
8-4-69
armed robbery
3 years "
SO Faivfielcl
John EaVard
3-14-72
bur^^lary ■
Pairoeli Cal
Doe iflii5972
oIMULAl
'ED RL'COr
^D
i::'F:iiTiFiCATroM division
164
'..!29 CRer. 10-21-83)
355974 C
$y^^/^f^(L yjcc^/-
</
PROPERTY OF
FEDERAL BUREAU OF INVESTIGATION
Washington, 0. C. 20537
FINGERPRINT IDENTIFICATION FILE
The Background, Concept, and Polic}- paper, beginning on page 10, contains
provisions relating to the security and confidentiaUty of information in the NCIC
interstate criminal history exchange system. In addition to these provisions,
system operating procedures identify each record with the agency entering the
record which is protected by computer programming from change by any other
agency. The computer is progi'amed to make certain sufficient data is included in
record entries to prevent erroneous identification. Communications lines are
dedicated to NCIC use.
Former Director Hoover has kept the Congress advised of the development of
NCIC in testimony before the House Subcommittee on Appropriations since 1966.
On March 17, 1971, he presented detailed information concerning the CCH File
before the Subcommittee. Also on March 17, 1971, Assistant Director Dwight J.
Dalbey presented Mr. Hoover's statement concerning the NCIC and the CCH
Program before the Subcommittee on Constitutional Rights of this Committee.
September 20, 1972.
National Crime Information Center (NCIC) Computerized Criminal
History Program Background, Concept and Policy as Approved by
NCIC Advisory Policy Board
background and concept
The development in 1971, of the computerized criminal history- file as part of
the operating NCIC system is a major step forward in making this system of
optimum value to all agencies involved in the administration of criminal justice.
It is felt pertinent at this time to restate established NCIC concepts and operating
policies, as well as new steps necessary to place this new application in its proj^er
perspective. Offender criminal historj* has alwaj-s been regarded by NCIC as the
basic file in a criminal justice information system. From the beginning of NCIC
165
sensitivitj^ of a criminal history file with its securitj^ and coiifidentialit.v consider-
atioas has alwaj's been recognized (Science and Technology Task Force Report,
The President's Commission on Law Enforcement and Administration of Justice,
1967).
It is important to keep in mind the need to develop an offender criminal history
exchange with the states that will rapidly gain the confidence of all users in terms
of system integrit.y, accuracy, and completeness of file content. This type of dis-
cipline is necessary if a nationwide system employing the necessarj' standards is to
succeed. This is an essential consideration during the record conversion stage
even though available data is limited, and becomes an essential goal in an operating
on-line system.
From its inception, the concept of NCIC has been to serve as a national index
and network for 50 state law enforcement information systems. Thus, the NCIC
does not, nor is it intended to, eliminate the needs for such systems at appropriate
state and metropolitan levels, but complements these systems. The concept was
built on varying levels and types of information in metropoHtan area, state and
national files. In such an overall s.vstem many thousands of duplicate indices in
local, state and Federal agencies could be eliminated and all agencies share in
centralized operational information from a minimum number of computer files.
The purpose of centralization be.yond economics is to contend with increasing
criminal mobilitj' and recidivism (criminal repeating). Computer and communica-
tions technology makes this possible and, in fact, demands this system concept.
Our way of life demands that local and state government retain their traditional
responsibility over law enforcement. Computer and communications technology
such as NCIC enhances local and state capability to preserve this tradition. The
NCIC system places complete responsibility for all record entries on each agencj' —
local, state or Federal. Likewise, clearance, modification and cancellation of these
records are also the responsibility of the entering agency. Each record, for all
practical purposes, remains the possession of the entering agency. However, each
local and state agenc,y in one state can immediately share information contributed
by another agency in another state. This continuity of information greatly in-
creases the capabilit}' of local and state agencies in working across state lines
which have in the past been barriers to mutual state and local law enforcement
efforts.
The NCIC system, which is the first use of computer/communications tech-
nology to link together local, state and Federal governments, established the
control terminal concept. In a national S3'stem, although the individual users are
responsible for the accuracy, validitj-, and completeness of their record entries
and their action decisions on positive responses to inquiries, more stringent con-
trols with respect to S3"stem discipline are required. A control terminal on the
NCIC systein is a state agency or a large core city ser\icing statewide or metro-
politan area users. These control terminals, rapidly becoming computer based,
share the responsibility in the national network in monitoring sjstem use, en-
forcing discipline and assuring system procedures and policies are met b.y all
users. The NCIC s.vstem through its related control terminals and the advent of
criminal history, has a potential of over 4.5,000 local, state and Federal criminal
justice user terminals. Tradition, computer/communications technolog.y, and the
potential size of the NCIC network and its related state systems demand that its
management responsibility be shared with the states. To accomiiiish this objective
an NCIC Working Comniittee and an Advisory Polic}' Board were established.
From the beginning, the NCIC sj'steni concept has been to encourage and
develop strong central state information and communications services. Through
mandatory reporting laws at the state level, essential centralized files can be
established for both operational and administrative use. The administrative or
statistical use of computer based files is a vital consideration. A state cannot make
intelligent decisions about crime problems or criminal justice effectiveness unless
it can statistically document tlie extent and nature of crime and the success or
failure of the criminal justice system in its treatment of offenders. Thus, the
planning of these systems must incorporate means of obtaining the necessary
statistical data as a by-product of the operational information being processed
on a day-to-day basis. This is particularh- true with respect to the criminal his-
tory application.
Of further significance are the centralized police statistics programs (Uniform
Crime Reports) now operating in 10 states whereby comparative crime statistics
are furnished to the national level through a central state agenc.y. This statistical
data furnished to the FBI for national use is merely a by-product of a more de-
166
tailed state program which is an integral part of state law enforcement informa-
tion services.
Offender criminal history, i.e., the physical and numeiical de'^criptors of an
arrested person and the basic recorded actions of the criminal jnstice agencies with
respect to the offender and the charge, is vital information in day-to-day criminal
justice operations. FBI studies as published in Uniform Crime Reports have doc-
umented the extent of criminal repeating by the serious offender, i.e., an average
criminal career of 10 years and 6 arrests. With respect to criminal mobility, about
70 percent of the rearrests (criminal repeating) will be within the same state.
Therefore, an offender criminal history file in scope and use is essentially a state
file and a state need.
There is, however, sul)stantial interstate criminal mobility (25-30 percent)
which requires sharing of information from state to state. There is no way to
]30sitively identif.y a first offender who will later commit a crime in another state.
The approach then to a national index must be an empirical judgment that all
state offenders committing serious and other significant violations must be in-
cluded in the national index. As in other aspects of the system, the determination
of which criminal acts constitute serious or significant violations resides with each
individual state. A national index is required to efficiently and effectively coordi-
nate the exchange of criminal history among state and Federal jurisdictions and
to contend with interstate criminal mobility.
The development of offender criminal history for interstate exchange required
the establishment of standardized offense classifications, definitions, and data
elements. Felony and misdemeanor definitions cannot be used in this approach
because of the wide variation in state statutes. In fact, the definitions of a specific
crime by state penal codes also vary widely. For full utilitj^ and intelligent de-
cision-making, offender criminal history requires a common undei-standing of the
terminology used to describe the criminal act and the criminal justice action.
Computerized offender criminal history must have the criminal fingerprint card
taken at the time of arrest as the basic source document for all record entries
and updates. This is necessary in order to preserve the personal identification
integrity of the system. While the criminal history file in the NCIC system will
be open to all law enforcement terminals for inquiry, only the state agency can
enter and u]3date a record. This provides for better control over the national file
and its content. It relies on a central state identification function to eliminate
duplications of records and provides the best statistical opportunity to link
together multi-jurisdictional criminal history at local and county level.
Using the NCIC concept of centralized state information systems, another
requirement is to change the flow of criminal fingerprint cards. Local and county
contributors wdthin a state must in an ultimate operational system forward
criminal fingerprint cards to the FBI through the central state identification
function. Where the state can make the identification with a prior print in file,
it can take the necessary action in a compaterized file without submission to the
FBI. Where the state cannot make the identification, the fingerprint card must
be submitted to the national identification file. Again, the system's concept is
that a fingerprint card must be the source document for a record entry and u])date,
but now it will be retained at the state or national level. This approach eliminates
considerable duplication of effort in identifying fingerprint submissions, particu-
larly criminal repeaters at state and national level. It will be the responsibility
of each state to determine its own capability in regard to servicing intrastate
criminal fingerprint cards. Whenever a state has determined that it is ready to
assume processing all intrastate criminal fingerprint cards, the state agency will
inform contributors within the state to forward all criminal fingerprint submis-
sions to the state identification bureau, including those which were previously
directed to the FBI, and will also so inform the FBI. Since the success of the sys-
tem concept depends on this procedure all possible measures will be taken to
assure compliance.
As pointed out earlier, the Justification for a national index is to efficiently and
effectively coordinate .50 state systems for offender criminal history exchange.
The need is to identify the interstate mobile offender. FBI statistics indicate that
about 70 percent of the offenders confine their activity to a single state. These
may be described as single state offenders. Another 25 to 30 percent of the offenders
commit crimes supported by fingerprint cards in two or more states. FBI statistics
with respect to more serious violators indicate that on an average, one-third
accumulate arrests in three or more states over a 6 to Q-j^ear period. Offenders
with arrests in two or more states may be described as multiple state offenders.
In either event sufficient data must be stored in the national index to provide
167
all users, particularly those users who do not have the capability to fully partic-
ipate in the beginning system, the information necessarj^ to meet basic criminal
justice needs.
In order for the system to trulj' become a national system, each state must
create a fully operational computerized state criminal history- capability within
the state before July 1, 1975.
Although the present need for the criminal history file and the unequal devel-
opment of state criminal justice s.ystems dictate a simple initial index structure,
the ultimate system should differentiate between "multiple state" and "single
state" offenders with respect to the level of residency of detailed criminal history.
"Single state" offenders would be those whose criminal justice interactions have
been non-Federal and confined to a single state having a computerized criminal
history system.
The interstate exchange of computerized criminal history records requires a
standard set of data elements and standard definitions. The system design must
be built upon user needs for all criminal justice agencies and end with user input.
It should be designed on what it is possible to achieve in the future and initially^
operate on the information and hardware available at all levels at the present
time. While the projiosed formats and standardized offense classifications and
definitions seem ambitious, to approach a system of this potential scope and size
without a plan to substantially' improve the identification/criminal historj^ flow
would be a serious error.
System concept
As pointed out earlier the concept of NCIC since initial planning in 1966 has
been to complement state and metropolitan area systems. Although computer/
communications technology is a powerful tool, a single national file of detailed
law enforcement data was viewed as being unmanageable and ineffective in
serving the broad and specialized needs of local, state and Federal agencies. The
potential size and scope of a national s^'stem of computerized criminal history
involving 45,000 criminal justice agencies demands joint management bv the
states and the FBI/NCIC.
Necessity for State files
(1) Seventy percent of the criminal history records will be single state in nature,
i.e., all criminal activity limited to one state and, therefore, "the responsibility
of and of primary interest to that state,
(2) State centralization can tie together the frequent intrastate, multijurisdic-
tional arrests <jf the same offender and thus eliminate imnecessary duplication
of files at municipal and county level. This will obviously result in economies,
(3) A state system with a detailed data base, because of its manageable size^
can best satisfy most local and state criminal justice agency information needs
both on and off line. The national file then complements rather than duplicates
the state file.
(4) A state with a central data base of criminal history has the necessary
statistical information for overall planning and evaluation including specialized
needs unrelated to the national file,
(5) State control of record entry and updating to national file more clearly
fixes responsibility, offers greater accuracy, and more rapid development of the
necessary standards,
(6) A central state system provides for shared management responsibility with
FBI/NCIC in monitoring intrastate use of the NCIC, including security and
confidentiality,
(7) By channeling the criminal identification flow through the state to the
national level eliminates substantial duplication of effort at national and state
levels.
Compatihilify of State and national files
(1) To contend with criminal repeating and mobility, a national index of state
and Federal offender criminal history is necessary, i!e., a check of one central
index rather than 51 other jurisdictions,
(2) The duplication does provide a liackup to recreate either a national or state
file in the event of a disaster, a crosscheck for accuracy, validity, and completeness
as well as a more efficient use of the network,
(3) The NCIC record format and data elements for comiDuterized criminal
history afford a standard for interstate exchange,
168
(4) In the developed S3^stem single state records (70 percent) will become an
abbreviated criminal history record in the national index with switching capability'
for the states to obtain the detailed record. Such an abbreviated record should con-
tain sufficient data to satisfy most inquiry needs, i.e., identification segment,
originating agency, charge, date disposition of each criterion offense and current
status. This will substantially reduce storage costs and eliminate additional
duplication.
Program development
The proper development of the Computerized Criminal History Program, in
terms of its impact on criminal justice efficiency and effectiveness and dollar costs,
is vital. At the present time there is a wide range of underdevelopment among the
states in essential services such as identification, information flow, i.e., court dispsoi-
tion reporting programs, computer systems and computer skills.
(1) NCIC implemented computerized criminal history in November, 1971,
requiring the full interstate format for both single and multi-state records be-
cause :
(a) This enables all states to obtain the benefits of the Computerized
Criminal History Program.
(b) This provides all states time to develop and implement the necessary
i-elated programs to fully participate.
(c) Familiarity with and adherence to all system standards will speed pro-
gram development.
(2) It is understood that the NCIC Computerized Criminal History Program
will be continually evaluated, looking toward the implementation of single state,
multi-slate concept.
Levels of ■participation
(1) State maintains central computerized criminal justice information system
interfaced with NCIC. The state control terminal has converted an initial load of
criminal history and these records are stored at state and national lev^els. The state
control terminal has the on-line capability of entering new records into state and
NCJC storage, as well as the abilits' to update the computer stored records.
Through the state system local agencies can inquire on-line for criminal history at
state and natit»nal levels. This is a ful].y participating NCIC state control terminal.
(2) State maintains an electronic switch linking local agencies for the purpose of
administrative message traffic and on-line access to NCIC through a high-speed
interface. No data storage at state level; however, criminal history records are
stored in NCIC' and new records entered and updated by the state control terminal
from a manual interface to the electronic switch. The switch provides local agencies
direct access to NCIC for criminal history summary information and other files.
(3) The state maintains manual terminal on low-speed line to NCIC. State
control terminal services local agencies off-line, i.e., radio, teletype and telephone.
Since volume of computerized criminal history is relatively small the state control
terminal may convert criminal history records, enter and ujidate these records in
NCIC. No computer storage at state level.
Levels 2 and -3 are interim measures until such time as the state agency secures
the necessary hardware to fully participate. At that time the state records stored in
NCIC will Idc copied in machine form and returned to the originating state to
implement the state system.
SECURITY AND CONFIDENTIALITY
I. Information in FBI/NCIC Interstate Criminal History Exchange System
A. Entries of criminal history data into the NCIC computer and updating of
the computerized record will be accejjted only from an authorized state or Federal
criminal justice control terminal. Terminal devices in other criminal justice agen-
cies will be limited to inquiries and responses thereto. An authorized state control
terminal is defined as a state criminal justice agency on the NCIC sj'stem servicing
statewide criminal justice users with respect to criminal history data. Control
terminals iji Federal agencies will be limited to those invc)lved in the administra-
tion of criminal justice and/or having law enforcement responsibilities.
B. Data stored in the NCIC computer will include personal identification data,
as well as public record data concerning each of the individual's major steps
through the criminal justice jjrocess. A record concerning an individual will be
initiated u])on the first arrest of that individual for an offense meeting the criteria
established for the national file. Each arrest will initiate a cycle in the record.
169
which cycle will be complete upon the offender's discharge from the criminal
justice process in dispositioii of that arrest.
C. Each cycle in an individual's record will be based ui)on fingerprint identifica-
tion. Ultimately the criminal fingerprint card documenting this identification will
be stored at the state level or in the case of a Federal offense, at the national level.
At least one criminal fingerprint card must be in the files of the FBI Identification
Division to support the C(jmputerized criminal history record in the national
index.
D. The data with respect to current arrests entered in the national index will
be restricted to serious and/or significant violations. Excluded from the national
index will be juvenile offenders as defined by state law (unless the juvenile is tried
in court as an adult) ; charges of drimkenness and/or vagrancy; certain public order
offenses, i.e., disturbing the peace, curfew violations, loitering, false fire alarm;
traffic violations (except data will be stored on arrests for manslaughter, driving
under the influence of drugs or liquor, and "hit and run") ; and non-specific charges
of suspicion or investigation.
E. Data included in the system must be limited to that with the characteristics
of public record, i.e.;
1. Piccorded by officers of public agencies or divisions thereof directly and
principally concerned with crime prevention, apprehension, adjudication or
rehabilitation of offenders.
2. Recording must have been made in satisfaction of public duty.
3. The public duty must have been directly relevant to criminal justice
responsibilities of the agency.
F. Social history data should not be contained in the interstate criminal history
system, e.g., narcotic civil commitment or mental hygiene commitment. If, how-
ever, such commitments are part of the criminal justice process, then they should
be part of the system.
Criminal history records and other law enforcement operational files should not
be centrally stored or controlled in "data bank" systems containing non-criminal
justice related information, e.g., welfare, hospital, education, revenue, voter
registration, and other such non-criminal files necessary for an orderly process in a
dem.ocratic society.
G. Each control terminal agency shall follow the law or practice of the state or,
in the case of a Federal control terminal, the applicable Federal statute, with
respect to purging/expunging data entered by that agency in the nationally stored
data. Data may be purged or expunged only by the agency originally entering that
data. If the offender's entire record stored at the national level originates with one
control terminal and all cycles are piirged/expunged by that agencj', ail informa-
tion, including personal identification data will be removed from the computerized
NCIC file.
II. Steps to Assure Accuracy of Stored Information
A. The FBI/NCIC and state control terminal agencies will make continuous
checks on records being entered in the system to assure system standards and
criteria are being met.
B. Control terminal agencies shall adopt a careful and permanent program of
data verification including:
1. Systematic audits conducted to insure that files have been regularly and
accurately vipdated.
2. Where errors or points of incompleteness are detected the control terminal
shall take immediate action to correct or complete the NCIC record as well
as its own state record.
III. Who May Access Criminal History Data
A. Direct access, meaning the ability to access the NCIC computerized file by
means of a terminal device, will be permitted only for criminal justice agencies
in the discharge of their official, mandated responsibilities. Agencies that will be
permitted direct access to NCIC criminal history data include:
1. Police forces and departments at all governmental levels that are re-
sponsible for enforcement of general criminal laws. This should be understood
to include highway patrols and similar agencies.
2. Prosecutive agencies and departments at all governmental levels.
3. Courts at all governmental levels with a criminal or equivalent juris-
diction.
4. Correction departments at all government levels, including corrective
institutions and probation departments.
170
■15. Parole commissions and agencies at all governmental levels.
'6. Agencies at all governmental levels which have as a principal function
the collection and provision of fingerprint identification information.
7. State control terminal agencies which have as a sole function by statute
the development and operation of a criminal justice information sj'stem.
IV. Control of Criminal Justice Systems
All computers, electronic switches and manual terminals interfaced directly
with the NCIC computer for the interstate exchange of criminal history infor-
mation must be under the management control of criminal justice agencies
authorized as control terminal agencies. Similarh^, satellite computers and manual
terminals accessing NCIC through a control terminal agency computer must be
under the management control of a criminal justice agency. Management control
is defined as that applied by a criminal justice agency with the authority to
emplo.y and discharge personnel, as well as to set and enforce policy concerning
computer operations. Management control includes, but is not limited to, the
direct supervision of equipment, systems design, programming and operating
procedures necessarj' for the development and implementation of the computer-
ized criminal history program. Management control must remain full}' inde-
pendent of noncriminal justice data systems and criminal justice systems shall
be primarily dedicated to the service of the criminal justice community.
In those instances where criminal justice agencies are utilizing equipment and
personnel of a noncriminal justice agency for NCIC/CCH purposes, the following
criteria will apply in meeting the above management control provisions:
1. The hardv.are, including processor, communications control, and storage
devices, to be utilized for the handling of criminal history data must be dedicated
to the criminal justice function.
2. The criminal justice agency must exercise management control with regard
to the operating of the aforementioned equipment by:
(a) having a written agreement with the noncriminal justice agencj'
operating the data center providing the criminal justice agency authority to
select and supervise personnel,
(b) having the authorit.y to set and enforce policy concerning computer
operations, and
(c) having budgetary control with regard to personnel and equipment, in
the criminal justice agencj-.
The Board endorses the following statement by the Director of the FBI before
the Subcommittee on Constitutional Rights on March 17, 1971. "If law enforce-
ment or other criminal justice agencies are to be responsible for the confidentiality
of the information in computerized systems, then they must have complete man-
agement control of the hardware and the people who use and operate the system.
These information systems should be limited to the function of serving the crim-
inal justice communitj" at all levels of government — local, state and Federal."
The following are considerations:
1. Success of law enforcement/criminal justice depends first on its manpower,
adequac}^ and quality, and secondlj-, information i^roperiy processed, retrievable
when needed and used for decision making. Law enforcement can no more give
up control of its information than it can its manpower.
2. Computerized information systems are made up of a number of integral
parts; namely, the users, the operating staff, computers and related hardware,
communications and terminal devices. For effectiveness, management control
of the entire system cannot be divided between functional and nonfunctional
agencies. Likewise, the long-standing law enforcement fingerprint identification
process is an essential element in the criminal justice system.
3. Historically, law enforcement/criminal justice has been responsible for the
confidentiality of its information. This responsibility cannot be assumed if its
data base is in a computer sj'stem out of law enforcement/criminal justice control.
4. The function of public safety and criminal justice demands the highest order
of priority, 24 liours a day. Experience has shown that this prioritj^ is best achieved
and maintained through dedicated systems.
5. A national/statewide public safety and criminal justice computer/communi-
cations system, because of priority, scope including system discipline, and informa-
tion needs, on and off line, will require full service of hardware and operating per-
sonnel.
6. Historically, police and criminal justice information have not been inter-
mingled or centrally stored with noncriminal social files, such as revenue, welfare,
171
and medical, etc. This concept is even more valid with respect to computerized
information systems at both national and state levels.
7. These sj'stems, particularh' public safety and criminal justice information
sj'stems, must be functional and user oriented if they are to develop effectively.
Computer skills are a part of the system. Ineffective systems resvdt not only in
the greatest dollar loss but also costs in lives.
V. Use of System-Derived Criminal History Data
A. Criminal historj- data on an individual from the national computerized file
will be made available outside the Federal government to criminal justice agencies
for criminal justice purposes. This precludes the dissemination of such data for use
in connection with licensing or local or state employment, other than with a
criminal justice agenc}', or for other uses unless such dissemination is pursuant to
state and Federal statutes. There are no exceptions.
B. The use of data for research should acknowledge a fundamental commitment
to respect individvial privac.v interests with the identification of subjects divorced
as fulh- as possible from the data. Proposed programs must be reviewed by the
NCIC or control terminal agency to assure their propriety and to determine that
proper securit}' is being provided. All noncriminal justice agency requests involv-
ing the identities of individuals in conjunction with their national criminal history
records must be approved bj' the Advisory Policj' Board.
The NCIC or control terminal agency must retain rights to monitor any research
project approved and to terminate same if a violation of the above principles is
detected. Research data shall be provided off line only.
C. Should any information be verified that any agency has received criminal
historj' information and has disclosed that information to an unauthorized source,
immediate action will be taken b.y NCIC to discontinue criminal history service to
that agency, through the control terminal if appropriate, until the situation is
corrected.
D. Agencies should be instructed that their rights to direct access encompass
only requests reasonably connected with their criminal justice responsibilities.
E. The FBI/NCIC and control terminals will make checks, as necessary, con-
cerning inquiries made of the s.vstem to detect possible inisuse.
F. The establishing of adequate state and Federal criminal penalties for mis-
use of criminal history data is endorsed.
G. Detailed computerized criminal history printouts shall contain caveats
to the effect, "This response based on numeric identifier only" and "Official use
only — arrest data based on fingerprint identification by submitting agenc.y or
FBI." These caveats will be generated by the FBI, NCIC or state control termi-
nal's computer or may be preprinted on paper stock.
VI. Right to Challenge Record
The person's right to see and challenge the contents of his record shall form an
integral part of the system with reasonable administrative procedures.
VII. Phj-sical, Technical, and Personnel Security Measures
The following securitj^ measures ai-e the minimum to be adopted by all criminal
justice agencies having access to the NCIC Computerized Criminal History File.
These measures are designed to pre\-ent unauthorized access to the system data
and/or unauthorized use of data obtained from the computerized file.
A. Computer Centers:
1. The criminal justice agency computer site must have adequate physical
security to protect against any unauthorized personnel gaining access to the
computer equipment or to any of the stored data.
2. Since personnel at these computer centers can access data stored in
the s3'Stem, they must be screened thoroughly under the authority and super-
vision of an NCIC control terminal agencj'. (This authoritj' and supervision
ma J' be delegated to responsible criminal justice agenc.y personnel in the
case of a satellite computer center being serviced through a state control
terminal agencj'.) This screening will also apply to non-criminal justice
maintenance or technical personnel.
3. All visitors to these computer centers must be accompanied by staff
personnel at all times.
4. Computers having access to the NCIC must have the proper computer
instructions written and other built-in controls to prevent criminal history
data from being accessible to any terminals other than authorized terminals
172
5. Computers having access to the NCIC must maintain a record of all
transactions against the criminal history file in the same manner the NCIC
computer logs all transactions. The NCIC identifies each specific agency
entering or receiving information and maintains a record of those transactions.
This transaction record must be monitored and reviewed on a regular basis
to detect any possible misuse of criminal history data.
6. Each state control terminal shall build its data system around a central
computer, through which each inquiry must pass for screening and verifica-
tion. The configuration and operation of the center shall provide for the
integrity of the data base.
B. Communications:
1. Lines/channels being used to transmit criminal histor}^ information
must be dedicated solely to criminal justice use, i.e., there must be no ter-
minals belonging to agencies outside the criminal justice system sharing
these lines/channels.
2. Physical security of the lines/channels must be protected to guard
against clandestine devices being utilized to intercei^t or inject S3'stem
traffic.
C. Terminal Devices Having Access to NCIC:
1. All agencies having terminals on the system must be required to physi-
call}' place these terminals in secure locations within the authorized agency.
2. The agencies having terminals with access to criminal history must
have terminal operators screened and restrict access to the terminal to a
minimum number of authorized employees.
3. Copies of criminal history data obtained from terminal devices must be
afforded seciu'ity to prevent any unauthorized access to or use of that data.
4. All remote terminals on NCIC Computerized Criminal History will
maintain a hard copy of computerized criminal history inquiries with notation
of individual making request for record (90 days) .
VIII. Permanent Committee on Securitj' and Confidentiality
A permanent committee has been established, composed of NCIC participants,
which group will address the problems of security and privacy on a continuing
basis and provide guidance to the NCIC Advisor}' Policy Board. Some areas
recommended for study are :
A. The consideration of criteria for the purging of records, i.e., deletion of
records after a designated period of criminal inactivity or attainment of a specified
age, etc.
B. The consideration of criteria for qualification of non-criminal justice agencies
for secondary access to criminal history data.
C. A model state statute for protecting and controlling data in any future
system should be drafted and its adoption encouraged.
IX. Organization and Administration
A. Eftch control terminal agency shall sign a written ag-reement with the NCIC
to conform with system policy before participation in the criminal history program
is permitted. This would allow for control over the data and give assurance of
system security.
B. In each state the control terminal agencj^ shall prepare and execute a written
agreement containing similar provisions to the agi-eement by the states and NCIC
with each criminal justice agency having a terminal device capable of accessing
criminal history data within that state.
C. Eacli state criminal justice control terminal agency is responsible for the
security throughout the system being serviced by that agency, including all
places where terminal devices are located.
D. A system security officer shall be designated in each control terminal agency
to assure all necessary physical, personnel, computer and communications safe-
guards prescribed by the Advisory Policy Board are functioning properly in
systems operations.
E. The rules and procedures governing direct terminal access to criminal history
data shall apply equally to all participants in the system, including the Federal
and state control terminal agencies, and criminal justice agencies having access
to the data stored in the system.
F. All control terminal agencies and other criminal justice agencies having
direct access to computerized criminal history data from the system shall permit
an inspection team appointed by the Security and Confidentiality Committee to
conduct apiDropriate inquiries with regard to any allegations received by the
173
Committee of security violations. The inspection team shall include at least one
representative of the FBI/i\ UlO. All results of the investigation conducted shall
be reported to the Advisory Policy Board with appropriate recommendations.
G. Any non-compliance with these measures shall be brought to the immediate
attention of the Committee which shall make appropriate recommendations to
the Advisory Policy Board. This Board has the responsibility^ for recommending
action, including the discontinuing of service to enforce compHance with system
security regulations.
Senator Tunney, To what extent do you expurgate records from
files that are kept?
Mr. Gray. That is done on any occasion when an originating
agency, what we call a contributor, requests it. As a practicing at-
torney in Connecticut, many times 1 used to do it, ray law firm used
to do it — get those expunged — and the FBI will send that fingerprint
card back nnmediately.
Senator Tunney. But what I am thmking of is in reference to the
files that 3 ou keep on individuals and which are made available to
various agencies. To what extent are those files expurgated, assuming
now that nobody makes a specific request for expunging anything in
the record?
Mr. Gray. Those files we don't expunge, and once again I have got
to give you an explanation so you have a feel for it, I would like to show-
it to you, and I make the same offer that I made to the House
Judiciary Committee, that any member who wants to come and take
a visit there, Ml\ Ciiih'.nan, to se3— an/ m3mb3r of this committee
who wants to take the opportimity to come and visit and see how we
work — this is the committee of Congress in the Senate that we should
be working with. But we make no eft'ort to expunge because of the fact
that a lot of that is raw material and it does not represent files on
individuals. There may be in a file 350 or 400 insertions and the}^ coukl
be on any number of individuals, but we really don't monkey around
■with that unless a request comes in, for example, for a name check.
We will go to the indexes and we will find out, John Q. Doe, and we
will find out what files, what nvunbered files, does John Doe appear in.
We will have to go down through all those general files and find out
what is in them. Then he may be the subject of an investigation and we
have an investigative file and that will show up when we review our
indexes. In the investigative file we do our level best to corroborate
and to verify, but in submitting any report we characterize our sources
as being reliable or otherwise.
We actually lean over backward to make certain that we are being
as fair and as objective as we can when vve submit these, and we put
that language on those documents.
Senator Tunney. To which agencies do you make these investi-
gative files available?
Mr. Gray. Are 3^ou talking about the investigations?
Senator Tunney. Well, the reports, let's just say, to which agencies
do 3"ou make individual personnel files available?
Mr. Gray. As a general rule we don't. We don't do that at all,
because name check requests come in, applicant requests come in to
us, or there could be an ongoing investigation involving individuals
in an agency, and then we would certainly advise — if we look in our
jurisdictional handbooks and under our manual of rules and regu-
lations we see that for this particular type of investigation, these
91-331—73 12
174
people are authorized to receive reports. It could be the Secretary of
the Department concerned. It could also be the Attorney General.
More than likely, also the Deputy Attorney General and, if it is a
criminal offense, more than likely also the Assistant Attorney Genei'al
in charge of the Criminal Division.
Senator Tunney. How about local police departments?
Mr. Gray. Local police departments?
Senator Tunney. Yes.
Mr. Gray. We just don't throw those files around.
Senator Tunney. If they requested a file?
Mr. Gray. No, sir. In fact, I just raised Cain with regard to a
situation out in, I believe it was, our Los Angeles area, when a local
policeman, and this was a criminal investigation, was allowed to even
look at one of our interview reports in a case.
Senator Tunney. Will you send 3^our arrest record portion of the
file to banks or other private
Mr. Gray. No, sir.
Senator Tunney. (continuing). Institutions
Mr. Gray. No, sir.
Senator Tunney (continuing). When they are conducting checks?
Mr. Gray. No, the way that happens is if there is a State statute —
banks are a little bit different because they come under some of the
Federal statutes.
Senator Tunney. Well, any private corporation, do you ever
Mr. Gray. No, absolutely not; no, sir. You know this has been
much discussed in the Congress, and resolutions have been passed and
points of order have been made and it has been rather thoroughly
discussed and aired, and where we stand right now is if a State has a
statute that provides for the receipt of this information for employ-
ment and licensing purposes and the Attorne}^ General of the United
States approves, we ^\ill furnish it for that purpose. But \\'hen we go to
computerized criminal histories and get into the NCIC area, then it
only goes to a la^^■ enforcement agency.
Senator Tunney. So what you are saying is, no private group has
access to any of the information that is contained in your personnel
files?
Mr. Gray. Our policies are against that. We have a record of all
kinds of safeguards to prevent that, but that is a pretty broad question
because you and I both know information from our files has ended up
in some strange places for varying reasons, and I don't kno\v all of the
reasons for this. You can think of the media, for example, as one area.
But no private group has access insofar as we can prevent them from
having access.
Senator Tunney. And local police departments have access only if
the Attorney General appro^'es it?
Mr. Gray. This is for State employment or licensing purposes.
But on the identification record, we will give a re])ort back to a local
police department regarding the card, the fingerprint card, they have
sent in, but we won't send them back all kinds of information out of
our files as distinguished from our identification records.
Senator Tunney. What kind of security does the NCIC data baidi
have?
Mr. Gray. Very, very tight security. I have been over and watched
it when the reject button goes on, and the reject is recorded. Now,
175
there is no question about it, sophisticated people can penetrate, and
have penetrated, computer systems. We are aware of this, we are well
aA\ are of this, and we watch for it all the time. There have been many
technical articles written on penetration of computer systems. In fact,
some people, some of the experts, go so far as to say that you can't
design a computer system that thej' can't penetrate.
Senator Tunney. How many people have access to the NCIC
data bank?
Mr. Gray. What part of it are you talking about, sir? You remem-
ber I read off a list of items.
vSenator Tunney. Yes. Well, say on personal files?
Mr. Gray. Only those who have terminals, and those are all law
enforcement agencies, those terminals are right there under the control
of criminal justice agencies. This is one of the requirements.
Senator Tunney. Do you knovr, offhand, ho^^ many there are?
Mr. Gray. I would say roughly right now, the rough figure of the
law enforcement agencies ha^'ing access tlu-ough terminals in their
State — I am thinking now in terms of the State system, usually there
is a State agency of some kind that has a terminal in that State —
roughly 6,000 police departments in the United States.
Senator Tunney. Is there any way of monitoring the requests for
information to make sure that people ^N'ho are appropriately charged
with enforcement of the la^\' are the ones who are requesting it?
Mr. Gray. Yes, sir; there are all kinds of codes, and, as I mentioned
earlier, Senator, you can stand right there in front of the computer and
see a reject; it \\ill just stop.
I don't w'ant to mislead you, and I don't want you to think that we
claim our computer system is pentrationproof ; we don't. All we claim
is that we have erected all the safeguards within the state of the art at
the i^resent time.
Senator Tunney. There are many more structural questions that I
have, but there are others who haven't asked questions, and I ^^■ould
like temporarily to suspend until they have a chance to ask questions.
I do have a question relating to your involvement or noninvolvement
with the security of documents that were made available to this com-
mittee.
Did you personally give or authorize the giving of the Dita Beard
memorandum to the ITT Corp.?
Mr. Gray. No, I did not.
Senator Tunney. Do you have any idea how the Dita Beard
memorandum ended up in the hands of the ITT Corp.?
IMr. Gray. I don't know that it ended up in the hands of the ITT
Corp., but I can tell you what I did at that time. I have got to, as I
promised Senator Byrd I would do yesterday. I will be more specific
and more precise because I am testifying under oath here. \[y recol-
lection is, after looking at some of my earher notes, 'v\hile I was acting as
the Assistant Attorney General of the Civil Division and Deputy
Attorney General-Designate, I received a call from Mr. Dean, counsel
to the President, asking that this memorandum be made available. I
discussed with him the fact that this was a public document, it had
been printed and published widely in all newspapers in the United
States, that ^\■e \\ere as interested in truth or falsity as they were at
the White House because of the fact that serious allegations were
176
made against the Attorney General, as I recall it, the Deputy Attorney
General, as I recall it, and that, yes, I would make that document
available to him.
Senator Tunney. And it was made available?
Mr. Gray. It was made available to him by me.
Senator Tunney. Do you kno\\' whether Mr. Colson got his hands on
it?
Mr. Gray. No, sir. No, sir; I do not. All I know is that that docu-
ment was returned to me in exactly the same form as I had delivered
it. I know that the Federal Bureau of Investigation report submitted
to this committee, reported that document to be possibly authentic.
Senator Tunney. Well, when the press reports indicated that ITT
did have the Dita Beard memorandum, did you make any effort to
find out how it was that they had gotten access to it?
Mr. Gray. No; I didn't make any effort at all because I felt what
we were interested in ^^-ith regard to that document was the issue of
truth, and if ITT, if that aUegation was true and if ITT could come
up with some information with regard to a serious case of this nature,
I felt that this committee would be entitled to have it. But I don't
know what ITT came up with. I don't know if ITT had that document.
Senator Tunney. Weh, except for the fact that the committee
gave it to the Justice Department to be transmitted to the FBI, and
I don't believe, and I sat through all those hearings, I don't believe
that there ever was an authorization to see that document m de
available to the ITT Corp.
Mr. Gray. I don't know whether there was any authorization or
not. Senator, but in the position that I held as Deputy Attorne}'-
General -Design ate at that time, I was making the decision for the
Department of Justice, and when I am called by counsel to the
President in a matter of this serious nature for a document of this
type, I made it available and I would do it again.
Senator Tunney. Let me ask you this. When you make informa-
tion available to a counsel for the President, and it appears that the
mformation that you have made available is leaked or made available
to third parties who have no right to it, do you feel, as Director of the
FBI, that you have any responsibility to see that an investigation is
done of that WTiite House counselor?
Mr. Gray. That is right. But you always get yourself, you know,
in the problem of who you are going to investigate. You have to be
very, very careful about that because here is where you run into first
amendment considerations and get yourself into a real hassle.
Senator Tunney. The only person who can discipline the White
House counselor is probably the President himself; isn't it?
Mr. Gray. I would suspect so; yes, sir.-
Senator Tunney. In a noncriminal way.
Mr. Gray. That is right; yes, sir — in the absence of laws of the
United States.
Senator Kennedy. I didn't understand, if the Senator will yield,
in response to the Senator's question, the fh'st amendment.
Mr. Gray. You are liable to run into the same kind of a situation,
Senator Kennedy. We do all the time. We go so far in trying to check
out leaks, and we come up with these documents that are in the hands
of the press and you have got to stop, look, and listen, ^''ou have got
to give some consideration to where vou go from there.
177
Senator Kennedy. Well. I menu if you were convinced that there
was a leak by the President's counselor would 3^ou be any less reluctant
to blow that case out of the water?
Mr. Gray. No, and I said yesterday that I proceed on the pre-
sumption of regularity, that I do not proceed on the presumption
that either the President, his counselor, or the members of his staff
are going to
Senator Kennedy. How much evidence do you need to rebut it?
Mr. Gray. How much evidence do I need for what, sir?
Senator Kennedy. Do you need to rebut it. How much e\'idence,
you proceed on a presumption and I am wondering how much evi-
dence do you need to rebut the presumption.
Mr. Gray. That is a kind of presumption. I don't know how much
evitlence. I am not going to take it on the basis of newspaper accounts
and that kind of thing, you know, and that occurred sometime after,
as I recall. I don't know when it was reported in the press.
Senator Tunney. Have you developed au}^ standards, guidelines,
in this particular area?
The thing that concerns me here is that there was a press report
of a leak by a White House counselor cf confidential information to
Mr Segretti.
Mr. Gray. I have not seen that, sir; I don't know. I would have
to see that report right in front of me, you know, to answer that
cjuestion.
Senator Kennedy. Well, there were, it was common knowledge,
you said you blew j^our top.
Mr. Gray. That was on wSegretti?
Senator Kennedy. Yes, on Segretti.
Mr. Gray. I am sorry, that is true.
Senator Kennedy. Then there were also some reports at the time
of the ITT hearing that the Dita Beard memorandum had ended up
in the hands of ITT for purposes of analj^sis, which certainly was
going out of channels and certainly was something that this commit-
tee, I know, I sat on it, didn't authorize. Now I am curious to know
if you are developing any kind of procedures whereby you are going
to protect the FBI and the security of FBI files from disclosures by
White House counselors if, in fact, and we don't know whether they
did or not, they are only allegations, if in fact they do leak this infor-
mation to third parties.
Mr. Gray. Yes, but I don't think there was a violation of law here.
It is not something that is within our jurisdiction to go just willy-
nilly investigating. We can't have it both ways, we have got to have
a violation of law.
Senator Kennedy. Would it be a violation of law if in fact a 'Wliite
House counselor gave your investigative report to Mr. Segretti to
advise him before a grand jury hearing?
Mr. Gray. No; I know of no violation of law in that. Senator.
Senator Kennedy. Are you planning any procedures, any guide-
lines with respect to the making of investigative reports available to
White House counselors?
Mr. Gray. None other than what I have already exercised in the
administration of the office to date — to be very, very careful, to be as
circumspect as I can be about it, to ask questions about it, to discuss
178
it, that kind of thing, and to stay Axithin our own jurisdictional guide-
Hnes. But it shouldn't be i)resunied by anyone that every day I am
called by someone in the White House to send over a file or that kind
of thing. I am not. It just does not hap])en.
Senator Kennedy. And they are not sent over as a matter of course?
Mr. Gray. No, sir. I can state that to you under oath categorically;
no, sir; they are not.
Senator Kennedy. I would like to reserve the balance of my time,
Mr. Chairman, and give others an o]i]iortunity.
The Chairman. Senator Fong.
Senator Fong. Mr. Gray, I am so sorry I. was not able to be here
yesterday afternoon. Therefore, I may ask you some c^uestions that
may be repetitive, but I ask you to go along with me.
You have been charged with not having any enforcement experience,
but reviewing your experience as a lawyer, your experience in the At-
torney General's office, and your other experience, I am satisfied that
you are capable of filling this ])osition.
Another charge leveled against you is that you have too many
dossiers on too many people in the United States. Could you give us
an idea as to when you prepare a file on an individual. Do you i)re])are
a file on an individual whenever you get any kind of com]ilaint against
him, or any criticism, or any communication about him?
Mr. Gray. Not if we get any communication about him. That is
just informant-type information or an anonymous letter situation or
a newspaper clipping sent in. Those usually go into the files, and there
could be 200 or 300 peo])le represented in one of them as distinguished
from when we begin an investigation and actually conduct an investi-
gation of an individual. Then information that is received concerning
that individual is checked and Aerified, using all of our resources to
get to the facts.
Senator Fong. If a man is considered to be a criminal, you A\<>u]d
have a criminal file on him; is that correct?
Mr. Gray. If he has committed a criminal offense, sir, within the
jurisdiction of the Federal Bureau of Investigation, violalied the laws
of the United States for which we have the responsibility to investi-
gate, yes; we would.
Senator Fong. Now, if I were a civil service employee, you \\x>idil
have a file on me?
Mr. Gray. We would probably have an applicant-type situation
where we would have a fingerprint card for you and then if we did a
background investigation on 3^ou, we would; yes.
-Senator Fong. Yes. If, for example, during the war I had a finger-
print of mAself taken and filed with the FBI to identify myself in
case of an}'" casualty, you AAOuld have that kind of information?
Mr. Gray. Yes, and that would be included in our civil file that
Senator Kennedy mentioned earlier. That obviously is not in our
criminal file, and all the military prints make up a pretty large segment
of that civil file according to my understanding of them.
Senator Fong. Then, every militarv man would have a file in the
FBI?
Mr. Gray. He would have from the standpoint of his fingerprint
identification card and then, if a background investigation were made
of him with regard to any classification security clearances that he
179
would receive, he would have that kind of a background investigation
file.
Senator Fong. With regard to the general pubhc, you only have
things that are sent in by various individuals or agencies to the FBI?
Ami then to understand that you just throw this information into
a general file?
Mr. Gray. That is right. It comes in and a decision is made as to
whether to retain it or not. It goes into these big serials, you know,
200 or 300 of them would be together and, if we have an investigative
file set up, instead of gouig over here it would go into the investigative
file.
Senator Fong. Say someone writes in that a John Doe stole an
automobile — vou would just take that and throw it into the general
file?
Mr. Gray. If this is somebody just writing in and. saying John Doe
stole an automobile we are liable to do some checking with the local
PD to see if, in fact, an automobile has been stolen and the Dyer
Act is involved.
Senator Fong. You would consider that as a file on John Doe?
Mr. Gray. If we began to open a file on him we probably would,
with the api^ropriate fiekl office being the office of origin.
Senator Fong. Wlien you say you have about 50 or 60 million
files
Mr. Gray. These are identification records over in the Identifica-
tion Division, Senator, as distinguished from the files over in the Files
and Communications Division. We are dealing mth two different
divisions.
'Senator Fong. Wlien you talk about files, how many files would you
say you had?
Mr. Gray. I don't know. I will have to provide that number for
the record.
(Mr. Gray subsequently submitted the followang document for the
record :)
Mr. Gray. As of March 1, 1973, there are 6,426,813 files.
The Chairman. Well, the 40 million, how far back does that reach?
Air. Gray. How far back do those files reach, sir? From the incep-
tion. But we do have a record management ])rogram.
(Mr. Gray subsequently submitted the following document for the
record :)
Records Management Files and Communications Division Through Close
OF Business 1-31-73
The Files and Communications Division has in operation an extensive and com-
prehensive Records Management Program designed to insure that all records are
maintained in the most compact, informative and useable manner possible.
There are many facets to this program and the major ones are summarized below
together with a listing of accomplishments to date:
1. Correlation Sum7naries. — A correlation summary is a memorandum contain-
ing concise abstracts of information from various Bureau files on a particular
subject or individual. The purpose of the summary is to pull together all informa-
tion on a designated subject in one document. This results in elimination of excess
index references and the consolidation of information in a source document (the
summarjO to locate detailed documents on a particular subject.
Accomplishments :
Summaries Prepared, 4,461.
Index Cards Destroyed, 1,377,968 — Equal to 25?^ index cabinets.
180
2. Index Purge — The purpose of the index purge is to remove obsolete index
cards from the general index in order to make that index more valid in terms of
its information response and more workable in terms of its overall size. The purge
of index cards includes all areas of records management except those index cards
removed through the preparation of correlation summaries.
Accomplishments :
Index Cards Destroyed, 10,942,136— Equal to 202% index cabinets.
3. Copy Destruction. — The goal of the copy destruction program is to destroy
duplicate and excessive copies of record material in order to save file space.
Accomplishments :
Copies destroyed equal to 1,028.8 file cabinets.
4-. Destruction of Files. — This program includes the destruction of record mate-
rial on the basis of authority under the General Records Schedule of disposal and
under specific authoritj^ secured by the Bureau through the National Archives
where General Records Schedule does not apply. Records so designated for des-
truction have been found to possess no significant historical, intelligence, informa-
tive or research value and, therefore, do not merit retention.
Accomplishmenis:
Records destroyed equal to 1,301 file cabinets.
5. Destruction of Bulky Exhibits. — The purpose of this program is to destroy
those file enclosures which because of their size cannot be maintained in a normal
size file cabinet and which do not merit continued retention.
Accomplishments;
Exhibits destroyed equal the approximate size of 7.5.6 file cabinets.
6. Microfilming. — The purpose of this program is to reduce to micro form that
record material which cannot be destroyed because of continued usefulness but
where the use is limited. The goal is to reduce space occupied by those records
based on the limited amount of use given them.
Accomplishments :
Record material destroyed equals 2,009 cabinets.
7. Main Card Rehabilitation. — The purpose of this continuing program is to
make the index most responsive to the needs of all users. Since 19.'i7, this program
has included a system to automatically capture for the index record identifying
data which was not available at the time the initial index record was prepared.
For those index records prepared prior to 19.)7, research has been conducted to go
back to the source document and capture identifying data not previously recorded
in the index.
8. Records Disposal Committee. — The Records Disposal Committee has the re-
sponsibility to identify, through research and analysis, record material which no
longer serves any useful purpose on the basis of intelligence, informative, historical
or research value. Appropriate authority is then secured to dispose of this material.
The Chairman. From the inception of the FBI?
Mr. Gray. That is right. We do have a records management section
in the FBI. I earlier answered the question and said we don't expunge.
But. in accordance with that records management program, which I
have made an insert in the record, Mr. Chairman, and be permitted to
explain
The Chairman. That would be everybod}" in the military service
since the FBI
Mr. Gray. That is right.
The Chairman. When was the inception of the FBI?
Mr. Gray. 1908 was the beginning.
Senator Fong. Then, as to the general public, you actually don t
have any files?
Mr. Gray. Not unless they fall in one of these categories we have
been discussing this morning or unless a letter, anonymous letter
comes in about some individual or informant type information comes
in about some individual.
Senator Fong. Many citizens volunteer to have their finger-
prints
Mr. Gray. That is correct, Senator.
181
Senator Fong (continuing). Filed with the FBI?
Mr. Gray. That is correct.
wSenator Fong. How man}^ million would you say?
Mr. Gray. I don't know, I would have to furnish that for the
record. I believe we could acquire that information, I am not sure we
even have it now.
(Mr. Gray subsequently submitted the following document for the
record :)
Mr. Gray. As of February 1, 1973, our civil fingerprint file contained finger-
prints of 5,778,171 individuals who have submitted their fingerprints to us for
personal identification purposes. During the past fiscal year (July 1, 1971 to
June 30, 1972) 13,640 individuals submitted their fingerprints to us for personal
identification purposes.
Senator Fong. That would be for their own safety and own identi-
fication?
Mr. Gray. That is correct, sir.
Senator Fong. How much does the FBI do in regard to missing
persons and trying to locate missing persons? As to persons who have
died, how much work does the FBI do in trying to find out who they
are?
Mr. Gray. I would have to get a measurement on that for you,
Senator. I know we do considerable. We do considerable disaster work.
We are always sending disaster teams out whenever major disasters
occur to assist in the identification of persons.
(Mr. Gray subsequentl}' submitted the following document for the
record :)
Mr. Gray. Through our fingerprint files we are able to provide many humani-
tarian services. For example, during the past fiscal year (July 1, 1971 to June 20,
1972) our Identification Division received the fingerprints of 21,266 deceased
individuals, many of whom were unlvno^\^l deceased. Of this number, the finger-
prints of 18,737 were of good enough quality to permit a search through our files
and 11,654 or 62% were positiveh^ identified by lingei-prints. Included in this
number were many individuals who had no arrest recoi ds and they were identified
witli fingerprints maintained in our civil file. A number of the deceased lingerprints
were from the military services in connection with Vietnam casualties.
The FBI Disaster Squad, which renders on-the-scene assistance in identifying
victims of disasters, was formed in 1940. Since January 1, 1959, the Disaster
Squad has assisted with identification problems in 86 disasters involving airplane
crashes, ship accidents, fires, explosions, hurricanes, floods and bus accidents.
Fingerprints or palm prints were secured from an estimated 2,277 victims, exact
number unknown because of dismemberment, and 1,604 or 70.44% were positively
identified by fingerprints or palm prints. Many of these identifications were made
witli fingerprints maintained in our civil file.
Other humanitarian uses made of our fingerprint files involve identification of
amnesia victims, assisting in establishing an individual's veteran's status so that
he or she may qualify for veteran's benefits, establishing positive identity of
individuals seeking to qualify for benefits vmder Civil Service regulations and social
security. Althougli we are not autliorized to conduct active investigation to locate
missing persons, we do place stops in our fingerprint files, on request, so that
relatives may be advised shoiild information as to the location of the missing
persons come to our attention through our fingerprint files. At present we have
approximately 6,000 missing persons stop notices in our fingerprint files and during
the past fiscal year (July 1, 1971 to June 30, 1972) 1,202 such notices were added to
the file while 1,452 notices were cancelled. We have received many heart-warming
letters from individuals who have located missing relatives through this service.
Senator Fong. As FBI Director, would you say that the average
American citizen does not have an}^ thing to fear from the FBI?
Mr. Gray. This is my belief. I don't believe it is shared by everyone
but it is shared by the majority of the people of the United States.
182
Senator Fong. And the average American who feels the FBI is an
overpowering institution and it is scary, they have no reason to
beheve that?
Mr. Gray. Quite to the contrar}'. From ever^'thing that I have
learned in the 10 months that I have been there, and in talking with
FBI headquarters peoj^ie and in the field, and from hearing from
citizens throughout the United States, I feel that the reputation of the
FBI is extremely high and its services are valued by the American
people.
Senator Fong. They feel that the FBI is a friendly agency rather
than a hostile one?
Mr. Gray. That is my belief, Senator, and I think it is shared by
the majority of the American people.
Senator Fong. Mr. Gray, you have been accused of not doing your
level best in the Watergate case. You have stated to this committee
that all the raw files are available to us; is that connect?
Mr. Gray. I made the statement that they were available to the
members, and I would provide two thoroughly experienced agents to
sit down wath the members and respond to any questions that the
members might have and assist the members in going over those
files. Once again, I am exercising what caution I deem to be prudent
here to restrict the need to know because of the information. It in-
volves people, a lot of the information has not been subject to trial, a
lot of those people have not been indicted, and I just feel this is the
prudent way to do it.
Senator Fong. You feel you have investigated this case without
bias, with all of the usual procedures that you ordinarily follow in any
other investigation?
Mr. Gray. The truth of the matter, Senator, is if I had not done so,
morale in the FBI would not be what it is today nor would I be in
this seat. People would have blo\M3. me right out of the water long
before now. That is the practical truth of the matter. The men and
women of the FBI would not tolerate my coming in there and trying
to steer or guide that investigation, and I say that any one of the top
executives of the Federal Bureau of Investigation would come here
before this committee and would testify to that under oath.
Senator Fong. Your bosses are the Attorney" General and the
President of the United States, are they not?
Mr. Gray. That is correct. Senator. I am a Bureau Chief in the
Justice Department under the executive branch of the Government.
Senator Fong. If the Attorney General wishes to have a file, an
FBI file, on an indi^^[dual because of an investigation of that indi\ddual,
you would make that available to the Justice Department; is that
correct?
Mr. Gray. I would make the information available to the Attorney
General as we do in the regular course of business with all of the
Assistant Attorneys General, the Criminal Division, the Civil Div-
ison and the Civil Rights Division. We actually do the investigating
for them. We work for them.
Senator Fong. If the Attorney General asked for it, you will make
it available to him?
Mr. Gray. Yes, sir.
183
Senator Fong. That has been a standard practice of the FBI all
these years?
Air. Gray. From the inception; yes, sir.
Senator Fong. And, if the President of the United States %\T.shes
to have an FBI file delivered to him, would it be delivered to him?
Mr. Gray. That would be delivered to liim.
wSenator Fong. Is that standard practice?
Mr. Gray. It is not. That is not the w^ay it occurs, that is not the
way it is usually done. It is usually done by submitting the memo-
randa that we do submit and on occasion permitting review of the
actual interview sheets themselves, depending upon the nature of the
situation.
Senator Fong. The White House has from time to time asked for
certain files, has it not?
Mr. Gray. Oh, that is correct. They don't get files as such. You
know, like I wouldn't take all these Watergate files as such and shunt
them all over there. In this particular case we gave a letterhead
memorandum to the Attorney General which, I have every reason to
believe, was sent to Mr. Dean. Then later on I gave Mr. Dean the
interview reports in the Watergate, but I didn't give him all the
other memoranda and all the other documents that we have in con-
nection A\dth the files.
Senator Fong. So, when a communication comes from the Wliite
House to give certain persons in high authority a certain file or a
memorandum of a file, 3'ou would do that?
Mr. Gray. Rarely would we give them the file, but we would give
them the memorandum on the case when it is recpiested, yes.
vSenator Gurney. Would the Senator vield?
Senator Fong. Yes, I would.
Senator Gurney. Mr. Gray, this word "interview" has been used,
interview reports; what does that mean?
Mr. Gray. That is an FD-302. When an agent interviews an
individual he writes out the report of the interview, what the indivi-
dual told him.
Senator Gurney. This is not a cpiestion and answer thing. It is a
sA'nopsis of what testimony the agent took?
Mr. Gray. That is right. He writes it out, "Joe Blow advised us,"
and it goes on and on about what he advised us.
Senator Fong. I see. You don't know whether what is said is true
or not?
Mr. Gray. Sir?
Senator Fong. You don't know whether what is said is true or not?
Mr. Gray. Oh, no, we only take what the individual tells us,
because we have no way — this is a report of an agent intervievvdng an
individual.
Senator Fong. In the case of Mr. Dean, who was representing the
President of the iJnited States, his receiving this memorandum from
you was a usual procedure?
Mr. Gray. That was the usual procedure, that it went to the
Attorney General and then to him.
Senator Fong. I see.
Mr. Gray. Because he didn't ask — that letterhead memorandum
was not really requested b}' him. He wanted information regarding
184
the case later on. We discussed the letterhead memorandum and I
said, "I ^\^ll prepare it for the Attorney General and 3'ou discuss that
with the Attorney General."
Senator Fong. He got that letter from the Attorney General?
Mr. Gray. I believe he did. I cannot testify under oath as to a
fact because I do not know whether or not that LHM as we call it
was sent over to him.
Senator Fong. What happened after that you do not know?
Mr. Gray. No, I do not know.
Senator Fong. You did what 3-ou were told to do?
Mr. Gray. That is correct.
Senator Fong. You followed procedure in doing that?
Mr. Gray. That is correct.
Senator Fong. When you submitted that letter to the Attorney
General, it was the proper thing for vou to do?
Mr. Gray. Yes, sir, that is the LHM of July 21, 1972.
Senator Fong. This chars-e that Mr. Segretti got hold of that
interview memo; you had nothing to do with that?
Mr. Gray. Well, he didn't — you know, the charge varies as to
what the newspapers sa}^ about it, and I don't know what occurred
with Mr. Segretti.
Senator Fong. So, you don't know?
Mr. Gray. No; I do not.
Senator Fong. Now, you have also been charged v/ith making
quite a few partisan speeches, and especialh' two speeches. One was
given before the Rotarv Club in Montana — Butte, Mont., on wSep-
tem-ber 7, 1972, and the other on August 11, 1972, before the City
Club of Cleveland. Your title in the September 7, 1972, address was
"A Nation That Cares," and your title of the August 11, 1972, City
Club of Cleveland speech was "Freedom L'nder Law."
I noted that your speeches were quite short. Thev ran to 12 to 15
minutes; is that correct?
Mr. Gray. Well, the way I talk. Senator, they go 15 to 20 minutes.
They usually run 20 pages triple space all caps, and that is about
20 minutes.
Senator Fong. I see.
Now, the speech that 3"0U made to the Rotary Club in Butte, iNIont.,
"A Nation That Cares," I have read it very, very carefully. I woulil
like to pick out some of the things in it which are outstanding. You
said :
This evening I want to talk about A Nation That Cares, a Nation which is
concerned about its citizens, their welfare, their happiness, their dignity as human
beings.
In our 20th century world these are among the salient questions facing mankind:
What kind of society do we want?
What kind of countrj^ is America going to become?
Does our government care about our people? Does it listen?
Is it a sensitive society, wanting to make life more significant and meaningful for
every man, woman and child?
Then you went on to say :
We realize that unless people care — about themselves, about others, aboiit their
values and traditions — our country will die.
This is why America is today a great and respected Nation.
185
Then voii said:
Uufortunatel.y, there are today a small minority of Americans — ^not many but a
few — who bitterly and falsely denounce our countrjr as cruel, sick, callous, and
repressive.
The}' want to create the impression that our government is an ogre, a monster
which simply doesn't care.
Another prominent educator has publicly denounced our national
leaders — and I ask, did he mean just the President? But to continue,
3'ou said:
Our national leaders as not giving — in his words — "any clear sign of compassion
or concern for the poor, the weak, the sick, the unemployed, the helpless. . . ."
When you referred to "national leaders," it was to the whole general
scheme of things; was it not?
Mr. Gray. Right; the three branches of Government, and I was
addressing myself to the general attack on our institutions.
Senator Fong. You were citing what others had said, what a prom-
inent educator said, and you continued:
Another speaks of a "selfish and oblivious ruling Establishment."
And you said:
This is extremist rhetoric.
It is not based on facts.
It deals in overkill, emotion, and flamboyance.
It seeks to set group against group, citizen against citizen.
You said:
These detractors aim not at reform of our institutions, but at their destruction.
Then you go on to say:
In my opinion the vast majority of Americans are becoming tired of this quack-
ing chorus of pessimism, cj^nicism, and lack of faith.
Is there anything there to boost the Republican Party?
Mr. Gray. Well, I certainly didn't believe so. I believe that I was
talking about our Government. I certaiuh" went at it in that manner,
and that was the feeling in m}^ heart and the intent in ni}' mind. I \\dll
admit though. Senator Fong, that others can read that differently.
Senator Fong. Yes, sir.
Mr. Gray. But I would say under oath; no.
Senator Fong. There was nothing to boost the Republican Party?
Mr. Gray. No; absolutel}' not.
Senator Fong. And to boost the President?
Mr. Gray. Absolutel}'^ not.
Senator Fong. Then you go on to say:
Since World War II the taxpayers of this countr}' have provided approximately
$130 billion in loans and outright grants to other nations. This has gone not just
to our strongest and closest allies, but roost especially to weaker nations most in
need of it.
Then you go on and say:
Again, what other country has found a means to send people of ability' and
dedication to help emerging nations around the world in their efforts to elevate
their waj^ of life, without asking anything whatsoever in return?
4: :!: 4: 4: H: ^ 4:
What other people supports anywhere near the variety of charitable causes
and contributes an j^ where near the proportio 1 of its resources for such causes? I
refer to approximately $20 billion per year in private contributions to health,
welfare, educational, and religious institutio.is.
186
And you go on to sa}^:
America is NOT a selfish, unconcerned societj^ that does not care.
Then you say :
I like the quotation attributed to Lowell Thomas: "He who allows a day to
pass without practicing generosity . . .," he said, "is hke a blacksmith's bellows —
he breathes but does not live."
This is the spirit of A NATION THAT CARES.
In our democratic society, however, the concept of service takes on a dimension
beyond material assistance.
Its greater gift is to provide a climate of freedom in which every individual may
j:)ursue his own hopes, dreams and aspirations, and may work out his own destiny
as a human being.
* * * * * * *
What other country has made such a determined effort to combat discrimina-
tion and assure equal opportunity for all persons regardless of race, color, or
religion?
Then you say :
Finally, the gift of individual freedom and equal opportunity that we enjoy
derives primarily from the free government that we have maintained for two
centuries. By that I mean a government in which the individual is protected in
his freedoms and his personal goals by laws that he or his representative helped
to make. Contrary to the opinion of some, law is not the enemy of freedom. Law
guarantees freedom against invasion by others.
Then you go on to say what the country is doing. I don't find any-
thing here boosting the RepubUcan Party, do you?
Mr. Gray. No, sir, I didn't think there was at the time I put the
speech together, and I still don't think it was. I would repeat again
for this committee that I was admonished by the Attorney General,
who said to me that "Some people in the White House said they think
you were making too many speeches," and I said I am going to stand
up, and I am going to talk for America, and that was exactly my
response.
Senator Fong. Yes.
Now in the other speech, before the City Club of Cleveland, you
spoke on "Freedom Under Law" and
The Chairman. The chairman will be gone for a few minutes. When
you conclude, Senator Kennedy will be recognized.
Senator Fong. Thank you.
You said:
Today the attack continues — for the concept of free men and women governing
themselves for the common good is virtually as radical in the 20 Century as it
was in the twilight of the 18th. And make no mistake — it is radical doctrine!
Our concept of freedom under law is banned, barred, forbidden and feared in
vast areas of the world where might makes right — where suppression wears the
uniform of the police and the robes of justice.
Then you go on and say :
We are on the threshold of the greatest growth pattern in our history — growth
in the quality of life for all our citizens — growth in our total effort to eradicate
the imperfections in human society (beginning, always, with our own).
Then you say:
We occupy 7 percent of the land surface of the earth. We are 6 percent of the
world's population. We account for almost one-third of the goods and services
produced on earth.
187
Then you go on to talk about forces of American technology and
you say all have the promise for indixdduals, and you say;
Every citizen of the United States is guaranteed legal rights and protections of
a magnitude not found anywhere else in the world.
All have the promise of individual rights and liberties.
All have an awareness of those rights and liberties.
All have a guarantee of opportunity to full realization of their rights and liberties
And you say:
No, pessimism does not yet reign supreme in these United States.
But there are those who insist that our joriceless liberties are being eroded —
that freedom is increasingly in jeopardy across the United States.
Is there any pro-Re]Hiblican Party doctrine in that?
Mr. Gray. I didn't believe so, Senator.
Senator Bayh. Would the Senator yield for just a moment?
Senator Fong. .Surely.
Senator Bayh. I don't want to impose on the Senator, but
Senator Foxg. I am very happy to yield.
Senator Bayh. But inasmuch as the ilistinguished Acting Director
and I got involved in a little discussion on this yesterday, I think
perhaps it shoidd be pointed out to my friend from HaA\'aii that one
of those ^\ho was concerned about certain activities that were taking
])lace involving Government moving in on the rights of individuals
happened to be the Presidential candidate for the opposition party.
Now jjerhaps that might put the remarks of the Acting Director in a
little different context when those remarks were made a month or so
before the election, and in a forum in which that presidential candi-
date himself had appeared, and in a forum where the following week
the ^"ice-presidential candidate of the o]:)])osition party appeared. That
was the concern expressed by the Senator from Indiana.
I appreciate the courtesy of my friend from Hawaii.
Mr. Gray. If I ma}^ say so, I accepted this speech long before there
was any thought of a political campaign in my mind and I went out
and made that speech not knowing that either of those two individuals
was going to be there. I had no knowledge of that and certainl}^ I had
no knowledge that I was making any attack in any waj". I was speak-
ing as an American citizen telling what I feel within me, Senator Ba3-h.
Senator Bayh. Well, Mr. Gray, we discussed that yesterda}^
Mr. Gray. Yes, I know we did.
Senator Bayh. I don't want to impose on the Senator from Hawaii,
but you were concerned enough with it to check that it was nonpoliti-
cal.
Mr. Gray. That is right, so I won't get into a thicket.
Senator Bayh. Whoever did that job for you didn't do enough of a
job to show you that the opposition candidates were going to be there,
and you did have a request in the administration memorandum which
we requested yesterday saying that in the minds of this administration
this was a ver}^ important political forum, and pointed out that two
previous administration siuTogates had been there. I suggest, with all
respect, if I didn't yesterday, that perhaps at least in the futiu'e if the
White House, whoever is sitting there, suggests that a forum would be
an important political forum maybe e nonpartisan Federal Bureau of
Investigation Director ought to sa}^, "That is good enough for me, we
188
have had these invitations since 1968, I will wait and not accept this
until 1973."
Mr. Gray. That is asking too much for humanity. I did have the
thought it would be a political thicket and I did check, the memoran-
dum is in the record, and there is no indication in that memorandum
there were an}^ political opportunities or overtures, or anything of the
rest of it, Senator Bayh. I am just respectfully differing with you,
and you know that.
vSenator Bayh. Well, I will not impose on Senator Fong's time but
when my time comes I will read the memorandum once again. It is in
the record, but I w^ant everyone to have a chance to hear it and then
make his own assessment as to why the administration was sending
that memorandum out.
Mr. Gray. Senator Bayh, may I ask as a courtesy when you read
that from Mr. O'Donnell, would j^ou read mine from the Crime Re-
search Division too, so we have both sides of it. Or I will read it if I
may, Mr. Chairman, at the appropriate time.
Senator Fong. Mr. Gray, to continue with m}^ line of questions, I
don't see any pro-Republicanism here in 3'our speech and I don't
think you did intend any.
Mr. Gray. I did not.
Senator Fong. Mr. Gray, I want to commend j^ou for the very
long, detailed, and excellent statement which you gave to this com-
mittee yesterday. Your statement yesterday has given this committee
a very good insight into what changes j^ou have made in the FBI and
what you have done during the 10 months you have served as the
Director.
Some people object to change but we live in a world of change and
there is no reason why there shouldn't be changes even in the great
institution that Mr. Hoover left to you. Your statement of what the
objectives and the function of the FBI are and should be in our free
society meets \\ith my very hearty approval.
Yoii have given me a very deep insight into your thinking as an
American, and with this thinking I concur heartily.
I want to commend you for being willing to talk to the public by
making so many speeches on your taking over the Office of Director.
I believe you have opened the windows and doors and let the public
know more about the FBI and you as a person than would have other-
wise been possible.
I have not found your speeches to be partisan for the Republican
Party. I have read them, scanned some, studied some, and I think I
would say that they were pro-American speeches and not pro-Repub-
lican Party speeches. I know it is very difficult to be pro-American
\nthout being accused of being pro-administration or pro-Republican.
I know to be pro-American you must emphasize the positive in Amer-
ica and not disparage it. This you have done admirably in your
speeches and I congratulate 3'ou for them.
I do hope you will continue to make public speeches after your con-
fu-mation. As you know, the FBI in the eyes of our people is a scary
and a very overwhelming and overpo^^•ering institution, and your
position as Director of the FBI carries with it awesome and fearful
powers. That is why you must as a Director always let the American
189
peoj^le know yon are human, that you are communicative, and that
you are not aloof and despotic.
From your candid responses to the hard questions which have been
put to you and the answers that you have given to them, I do not see
any reason why I shoukl not vote for your confirmation.
However, I will keep my mind open until the end of our hearings
to see whether this opimon will need to be changed by testimony the
nature of which I may not be aware of at this time.
Thank you, Mr. Gray.
Mr. Gray. Thank you. Senator Fong.
Senator Kennedy. I have some questions, Mr. Gray, which I did
not have a chance to ask you yesterday, but Senator Biu'dick has to
leave shortly and has one or two. With the indulgence of my colleagues,
he will ask his and then I will ask mine.
Senator Burdick. Mr. Gray, earlier this morning you testified about
arrest records. As you probably know, my subcommittee has been
dealing with this subject. The citizens of this Nation are all told of a
presumption of innocence so actually an arrest record itself, standing
alone, does not mean anything. I think you also testified that in these
matters of the arrest records were not made ])ublic. What instances are
there when they are made available to an3'body?
Mr. Gray. Well, there are just not instances where they are made
available to anybody. But a contributor may come in with a finger-
print card and ask us for a report on this particular individual and
on the card there will be a charge, he has been arrested, and a criminal
charge has been placed against him. There will be some reason for
arresting him and this arrest reason would show ou the card. What
we would do, Senator Burdick, is to see whether we had a record on
this individual, we would check it through our fingerprint section,
and if we had one we would look to see what the arrest record was.
In some of them, you know, he may have six, seven, eight, nine, ten,
all kinds of felonies, and you may have over in the disposition column
three or four dispositions and maybe the balance not showing dis-
positions. Or you ma}^ have a situation in which when you check you
find we have no piior arrest record, this is the first arrest and we will
report that, or in the other case
Senator Burdick. To whom do you report it?
Mr. Gray. Back to the police department, the contributor who
contributed the fingerprint card.
Senator Burdick. Then the police in Fargo, N. Dak., would have
a record of any one of the citizens who merely had been arrested?
Mr. Gray. They have to be arrested for a reason, there has to be a
charge placed against them. That is standard procedure under the
laws of the State of North Dakota. I assume when an individual is
arrested for criminal charges he is probably fingerprinted and photo-
graphed. I don't know wdiat the law is in North Dakota but that
police agency in North Dakota would undoubtedly proceed in accord-
ance with the laws or ordinances of the State or city in North Dakota.
Senator Burdick. Suppose that individual is later acquitted or
the case is dropped for lack of evidence, is that shown anywhere?
Mr. Gray. Well, it is shown provided that the contributor follows
through, and we exhort in all of our letters^ — which I will put into the
record as I promised earlier, I think in response to questions from
91-331—73—13
190
Senator Timney — we will show the exhortations we have made.
We will show that in our police training instructors' lectures out
there in the field we stress this. We will show that our Special Agents
in Charge in their speeches stress this. But we have no sanctions
available to us, that is correct.
(Mr. Gray subsequently submitted the following documents for
the record :)
Mr. Gray: I am submitting the following documents for the record. (Letters
to All Fingerprint Contributors dated April 2, 1962; vSeptember 23, 1966; No-
vember 21, 1968; June 2, 1971; July 22, 1971; and October 2, 1972, which pertain
to reporting arrest disposition data.) As I have pointed out, there are no procedures
in existence to assure Nation-wide reporting of dispositions. We have long ex-
horted all contributors to follow up with final dispositions on all arrests. Material
relating to this subject is made available to our field and headquarters personnel
for their use in connection with police training programs, speaking engagements
before groups associated with the criminal justice system and in their day-to-day
contact with law enforcement officials. The FBI has actively advocated legislation
at the Federal and state levels making it mandatory for the contributors to provide
disposition data on everj' arrest. The International Association of Chiefs of Police
and the International Association for Identification adopted resolutions presented
by the FBI that their members encourage their respective communities to support
enactment of legislation to mandate the reporting of final arrest disposition data
applicable to each arrest and that such data be sent by the arresting agency, the
prosecutor or the court at whatever step it occurs to the central file at the state or
national level to which an arrest fingerprint record was submitted. The resolutions
also encouraged all criminal justice agencies to make every effort to submit
disposition data in each instance until such mandatorj' legislation is enacted. Some
twenty-three states plus the District of Columbia now have varying laws or regu-
lations to require contributors to report dispositions, but all are not complying
because of staffing or budgetary problems and there are no sanctions for noncom-
pliance.
U.S. Department of Justice,
Federal Bureau of Investigation,
Washington, B.C., October 2, 1972.
Letter to All Fingerprint Contributors RE Identification Services
MULTIPLE SUBMISSIONS OF FINGERPRINT CARDS
Dear Sir: The FBI Identification Division has been striving to have each arrest
reported on the identification record supported by submission of fingerprints and to
have each arrest entry on the identification record followed by the final disposition
of that arrest. When fingerprint cards are submitted by the arresting agency and
also by custodial agencies such as the county jail or other institutions, the identi-
fication records (rap sheets) may contain one or more additional arrest entries which
duplicate the original arrest card submitted by the arresting agency and for which
a final disposition will not be forthcoming. There are also some departments which
submit separate arrest fingerprint cards on different charges resulting from a single
arrest of an individual. The arrest fingerprint card (FD-249) is designed to ac-
commodate additional charges resulting from a single arrest and should be used to
list such charges.
All multijjle fingerprint card submissions, in addition to causing entries to be
placed in the identification record for which dispositions will not be forthcoming,
require costly expenditure of clerical manpower to locate fingerprint jackets which
are out of file for processing of the arrest fingerprint card submitted first by the
arresting agency and delay the production schedules and procedures devised to
handle the large dsaly volume of fingerprint cards received by the Identification
Division.
Although the multiple submissions of fingerprint cards may provide a record of
incarceration prior to or following court adjudications, it is believed such entries
into an identification record serve little useful purpose in the overall maintenance
of a national criminal records sj'stem. Your close and continuing cooperation in
eliminating this problem of multiple submissions is solicited. If the jailer requires
a cop.v of the identification record, this can easily be accommodated b}' appropri-
ate notation on the reverse side of the arrest fingerprint card.
191
TELEPHONE REPLIES
When the appropriate block on the FD-249 indicates collect telephone reply-
is desired, it is requested that the nanxe of the officer desiring this information
and his telephone extension also be indicated. This additional data will enable us
to comply with your request without encountering unnecessary delays in having
collect telephone calls accepted.
AUTOMATION PROCEDURES REQUIRE STANDARDIZATION OF FINGERPRINT CARDS
Your attention is directed to our letter to all fingerprint contributors dated
November 9, 1971, captioned "Redesign of Arrest Fingerprint Card." All contri-
butors have been furnished a supply of the redesigned arrest fingerprint card,
FD-249, (printed in red ink) which was revised to accommodate the imple-
mentation of automated procedures in the Identification Division as well as to
better adapt the card to use within the Computerized Criminal History system.
The old FD-249 (printed in black ink) does not provide space to record certain
identification elements required by these automated systems. Similar objections
applj' to use by some departments of fingerprint cards not prepared to speci-
fications of the revised FD-249 and not preprinted with the code number re-
presenting the address of the contributor (ORI). Accordingly, you are requested
to destroy any remaining supply of the old FD-249 arrest card and immediatelj^
institute use of the redesigned arrest fingerprint card (FD-249) which is printed
in red ink. Adequate supplies of the redesigned card are available and will be
furnished to you with your preprinted address upon request.
The applicant fingerprint card, FD-258, is in the process of being revised and
will be printed in blue ink. You should continue to use the old FD-258 (printed
in black ink) until you receive a supply of the revised FD-258.
The changes in the colors of the inks used to print the revised arrest (FD-249)
and applicant (FD-258) fingerprint cards were made to accommodate optical
scanning equipment which will read certain printed codes and, in the future, the
fingerprint impressions. This equipment has been designed to detect only black
printer's ink and printed instructions and lines of the revised cards, in their
respective colors; thus will not interfere with its capabilities. Some contributors-
have submitted fingerprint impressions which have been made with other than
black printer's ink. In order for the optical scanning equipment to function as
designed, it is absolutely necessary that all fingerprint impressions which are
submitted to the FBI Identification Division be made only with black printer's ink.
REPORTING ARREST DISPOSITION DATA
During the recent annual meeting of the International Association for Identi-
fication (lAI) held in Milwaukee, Wisconsin, July 31 through August 3, 1972^
the following resolution was approved:
RESOLUTION
Whereas incomplete criminal identification records are of grave con-
cern to the general public, the courts, and all agencies which comprLse
the criminal justice system, be it resolved:
(1) That lAI members encourage their respective communities to
support the enactment of legislation to mandate the reporting of final
arrest disposition data applicable to each arrest and that such data be sent
by the arresting agency, the prosecutor, or the court at whatever stage
it occurs to the central file at the state or National level to which an arrest
fingerprint record was submitted.
(2) That until such mandatory legislation becomes law appropriate
criminal justice agencies make every effort to submit arrest disposition
data in each instance.
As the central repository of identification data in this country, the FBI Identi-
fication Division urges each contributor to follow and report the final dispositiont
of each arrest made by your department. Dismissals and "not guilty" adjudications
are as necessary as conviction data in completing an identification record of an.
individual so his record may reflect accurately the final result of charges filed
alleging violation of the law. It is the incomplete record that invites criticism of
our entire criminal justice records system.
192
The Identification Division has noted a marked increase in submissions of
disposition data since distribution of the revised Final Disposition Report, Pi,-S4,
was made in July, 1971. This form was designed to accompany the arrestee's
record on the pending charge(s) until final adjudication resulted and thus permits
the court, the prosecutor or the police to complete the form at whatever level the
final disposition of the charge (s) was made. Although an increased number of
Final Disposition Rej^orts have been received, many departments continue to
afford this vital link in our criminal records system low priority. You are lequested
to bring this matter to the attention of all personnel having responsibility for
reporting disposition data. Also, this form should be used to show any change in
the nature of the charge for which conviction s\'as obtained from the original
charge apoearing on the arrest fingerprint card.
Very truly yours,
L. Patrick Gray III, Acting Director.
U.S. Department of Justice,
Federal Bureau of Investigation,
Washington, B.C., July 22, 1971.
Letter to All Fingerprint Contributors Re FBI Identification Services
Dear Sir: The follo^\ing items are of immediate concern to all of us in law
.enforcement. We solicit your cooperation in implementing those changes requested.
FBI number
Effective immediately all criminal fingerprint Cards requiring an answer will
be given an FBI number if one has not been assigned previously. As you know,
the practice in the past has been to assign such a number upon receipt of the
second set of prints. A number now will be assigned vq^on receipt of the first set.
This change is deemed desirable in view of the Computerized Criminal History
Program scheduled for implementation this November, wherein the FBI number
is a necessary element for entry into the system. The new procedure also slK)uld
materially aid in curtailing multiple fingerprint submissions applicable to the
same arrest or incarceration. Such submissions lead to the costly and time-con-
suming task of locating fingerprint jackets which are out of file as a result of the
original fingerprint submission. The key to alleviating this problem of multiple
submissions is close cooperation and effort by all.
DISCLOSURE OF FBI IDENTIFICATION RECORDS TO SUBJECTS
There has been some misunderstanding on the part of certain fingerprint
contributors concerning disclosure of the contents of FBI identification records
to the subjects of those records. Some law enforcement agencies have been under
the impression that they would be denied future access to FBI identification
records if they were to comply with a court order directing that a subject be
permitted to examine the contents of his own record. Whereas the records them-
selves, or copies thereof, should not be furnisiied and the caution to treat such
records for official use only should be strictly adhered to, certainly compliance
with a court order constitutes an official use. Please insure there is no misunder-
standing within your own agency or on the part of other criminal justice agencies
that the FBI does not object to disclosure of the contents of an FBI identification
record to the subject of that record where disclosure is made pursuant to court
order in any pending criminal or civil case.
NON-FEDERAL APPLICANT FINGERPRINTS
Acting on remand in Menard v. Mitchell, 430 F 2d 486 (1970), United States
District Judge Gerhard A. Gesell, District of Columbia, on June 1.1, 1971, handed
down a Memorandum Opinion in this case (Civil Action No. 39-68) whicli pro-
hibits the FBI from disseminating identification records in response to finger-
193
prints submitted by state and local law enforcement and other government
agencies in connection with non-law enforcement purposes. This prohibition also
extends to Federally insured banks and savings and loan institutions as well as
railroad police. This means that effective immediately the FBI can no longer
accept for processing fingerprints taken in connection with licensing or local
or state employment which were formerly submitted directly to the FBI from the
regulatory agency or institution or through a local law enforcement agency. We
will continue to process applicant prints where the position sought is directly
with a state or local law enforcement or correctional agency, as such processing
directly serves a law enforcement purpose. There are no other exceptions.
In examining the issue of historic statutory authority for the Government to
engage in such practice, the court observed "it is abundantly clear that Congress
never intended to or in fact did authorize dissemination of arrest records to any
state or local agency for jourposes of employment or licensing checks." He further
noted "the Bureau (FBI) needs legislative guidance and there must be a national
policy developed in this area which will have built into it adequate sanctions and
administrative safeguards. It is not the function of the courts to make these judg-
inents, but the courts must call a halt until the legislature acts. Thus tlie court
finds that the Bureau is without authority to disseminate arrest records outside
the Federal Government for employment, licensing or related purposes."
In its study and review of the court's action, the FBI has sought and obtained
guidance and interpretation from the Department of Justice. There appears to be
no choice but to cease processing all types of non-Federal applicant fingerprints.
You will be promptly advised of any Congressional clarification of the Bureau's
authority in this area. In the meanwhile all such fingerprint submissions will be
returned to the contributing agency,
ARREST DISPOSITION DA'fA
The response to our letter of June 2, 1971, urging the submission of final arresi
disposition data has been most gratifying. We have received numerous favorable
replies pledging full cooperation, offei'ing suggestions and asking questions. One
question frequently raised is whether arrest fingerprint cards should be held by the-
contributor until final disposition is known, which in some instances may take'
months and even years. The answer, of course, is to submit arrest fingerprint-
cards promptly and follow with disposition information when it is available. In-
this way you can receive any identification record the individual may have in
response to your fingerprint submission, and fugitives against whose fingerprints
stops have been placed in our files will be promptly identified. Another point not
vniiversally understood is that disposition information should only be sent to the
FBI when arrest fingerprints for the same offense were forwarded previously.
Otherwise, we have nothing in our files to support the final disposition supplied.
A third point I want to stress is that disposition submissions should be individual
separate communications and not in list form. The reason for this is that the forms
are filed in individual jackets relating to each subject of an FBI number.
In our continuing effort to obtain complete reporting of final dispositions, we
have redesigned the final disposition report (form R-84), a sample of which is set
forth in reduced size as an attachment to this communication. The most radical
change is that as now designed, the form is to accompany the case file (or the
arresting officer's report) so that the final disposition can be reported in each
case at whatever level it occurs — police, prosecutor, or court. We recognize that the
adoption of such procedure will require an educational program with criminal
justice agencies. The disposition form will follow the arrestee's record on the cur-
rent charge (s) until final action is taken as a result of his arrest. If the case goes to
the prosecutor, his office should complete the form and submit it to the FBI
Identification Division when the matter is resolved at his level. If court action is
required, the prosecutor's office or clerk of the court should complete the form and
forward it. Note particularly the provision for four-finger fingerprint impressions
and instruction number two on the reverse side of the form. This provision was
included in anticipation of a possible future requirement that records of con-
victions in the National repository he supported by fingerprints. Also, of course,
more p-isitive controls are thereby provided for the entire svstem. The actual size
of the form will be the same as a fingerprint card, namely, 8 inches by 8 inches.
194
For the sake of uniformity and standardization, particularly in light of the
tremendous volumes of forms handled by the FBI Identification Division, it is
essential that the new form be utilized by all contributors in reporting final
dispositions. The new R-84 form is being printed on green stock and as soon as
copies are available an initial supply will be sent to each fingerprint contributor.
Thereafter, you should order the form as you need additional copies.
Very truly yours,
John Edgar Hoover, Director.
Enclosure.
Leave Blank '
,R-84(Rev. 6-29'71) FINAL DISPOSITION REPORT
1 Hole: This vital report must ne propori^H on each individual whose arreat rmgerprints have been forwarrfcd
.to the FBI Identificfltion Division without rmal disposition noted thereon. If no tinal disposition is Qvail-
'able to arresting aRoncy, also obtain subject's right four linger impressions or. this form, complete left side
^aiid forward the form whtn case referred to prosecuior nud/or courts. Agency on notice .t.-. to fuial disposition should complete this
■ fomi ;md submit to: Diiecfor, FBI, Woshingfon, D. C. 20537, Attention: Identilicotion Division.
<Soe instnictionfl on reverse side)
FBI No.
Final Disposition &; Date ; ■■*'''■ i j
!If convicted or subject pleaded guilty to lesser charge, include.
this modifi ~-»ll with disposition.)
Name on Fingerprint Card Subtnitted to FBI
Lost ' First
Middln
■
If FBI No. UnknoTO. Furnish:
Snv
'.F'ingerprint
Stale Bureau No. .:^
Tliis Form Submitted By:
|.(Name, Title, Agency, City «t Stole) ^
tlonlributor of Fingorprinta
AncatNo.
Dal« Arrested or Received
OffbOM* Chnrged at Arrest
'^i mature
■vDol*
Title'
I — I COURT ORDEREDEXPUNGEMENT: „ .
Return Arrest Fingerprint Card to Contributing Agency; .
Certified or Aulhenlicoted Copy of Court Order Attached.
Right Four Fingers Taken Simultaneously. ,-
Instructions
1. The purpose of this report is to record the initial data of an individual's
arrest and thereafter secure the final disposition of the arrest at the earliest
possible time from either the arresting agencv, the prosecutor or the court having
jurLsdiction. (INTERIM DISPOSITION INFORMATION, e.g., RELEASED
ON BOND, SHOULD NOT BE SUBMITTED.) The SUBJECT'S NAME,
CONTRIBUTOR AND ARREST NUMBER should be exactly the same as
they appear on the fingerprint card IN THE FILES OF THE FBI. The FBI
number should be indicated, if known. Agency ultimately making final disposition
will complete and mail form to: FBI Identification Division, Washington, D.C.
20537.
195
2. The arresting agency should fill in all arrest data on left side of form and
obtain the finger impressions of the right four fingers simultaneously. This should
be done at the same time as the full set of fingerprints are taken on the arrest
fingerprint card. If the arrest is disposed of by the arresting agency, as where the
arrestee is released without charge, then the arresting agency should fill in this
final disposition and mail form to FBI Identification Division. Of cour.se, if final
disposition is known when arrest fingerprint card is submitted it should be noted
thereon and this form is then unnecessary. In the event the case goes to the
prosecutor, this form should be forwarded to the prosecutor with arrestee's case
file.
3. The prosecutor should complete the form to show final disposition at the
prosecution level if the matter is not being referred for court action and thereafter
submit form directly to FBI Identification Division. If court action required,
the prosecutor should forward form with case file to court having jurisdiction.
4. The court should complete this form as to final court disposition such as when
arrested person is acquitted, case is dismissed, on conviction and when sentence
imposed or sentence suspended and person placed on probation.
.5. When arrested person convicted or enters guilty plea to lesser or different
offense than that charged when originally arrested, this information should be
clearly indicated.
6. if subsequent action taken to seal or expunge record, attach certified or
authenticated copy of court order to this form so that FBI can return arrestee's
fingerprints to original contributor.
7. It is vitally important for completion of subject's record in FBI Identification
Division files that Final Disposition Report be submitted in every instance where
•fingerprints previously forwarded without final disposition noted thereon.
U.S. Department of Justice,
Federal Bureau of Investigation,
Washington, B.C., Jane 2, 1971.
Letter to All Fingerprint Contributors Re Reporting Final Dispositions
Dear Sir: We ask your special attention at this time to the urgent need to re-
port a final disposition for each charge submitted to the FBI Identification Divi-
r;ion by fingerprint card. We have made this request previously, but never under
conditions of such urgencj- as those which now prevail.
The national criminal identification system is now the object of the most serious
attacks that have been launched against it since the system was inaugurated in
1924. These attacks vary somewhat in form and purpose, but they direct their fire
mainly toward the identification record that is incomplete for lack of dispositions
shown. Such records are alleged to be at best inaccurate, misleading, and of no
value, and at worst, a violation of the rights of the person on whom the record was
compiled.
The attacks are stated in several different ways. A number of civil suits have
been filed, all undecided as yet, demanding that the FBI cease dissemination of
any part of any record that is incomplete for lack of disposition shown, and/or
totally expunge from the record any notation of arrest or charge unsupported by a
disposition that is somewhere available but not shown on the record. These attacks
have come from such diverse sources as persons who allege loss of employment be-
cause of an incomplete identification record, prejudicial effect on an attempt to
obtain parole, or prejudice and harm for some other reason.
The courts now are beginning to express some concern over these incomplete
criminal identification records, and related problems. In one case an applicant
for private employment listed fourteen arrests, none of which led to convictions,
with the result that he was not hired. He alleged that the use of such information
to deny employment violated the Civil Rights Act of 1964. The Federal court
held for the plaintiff, and enjoined the employer from using such information as a
basis for denying employment. The court said, in pertinent part, that "information
concerning a prospective employee's record of arrests without convictions is irrele-
vant to his suitability or qualifications for employment." (Emphasis added). The
court said further that nothing in its order, liowev^er, would prohibit the employer
from complying with any requirement of national security clearance regulations,
nor prohibit the employer "from seeking, ascertaining, considering, or using
information concerning criminal convictions of applicants or existing employees."
(Emphasis added). Gregory v. Litton Systems, Inc., 316 F. Supp. 401 (1970).
The significance of this decision to our immediate problem is obvious.
196
It is worth noting, also, that Mr. Justice Douglas, dissenting in Tarver v. Smith,
a case not directly related to our problem, in which the Supreme Court denied
certiorari on Maj^ 24, 1971, said, in part, that "A file may show that an individual
was arrested. But will it show that the arrest was unconstitutional because it
was solely for purposes of investigation? Or that the charges were dropped? Or
that a jury acquitted him?" These remarks obviously foreshadow future questions
on the use of a criminal identification record that is incomplete for want of final
dispositions shown.
Questions similar to those raised in Gregory and Tarver, above, were also brought
out in Menard v. Mitchell, 430 F 2d 486 (1970), a Federal appellate decision
which remanded the plaintiff's demand for total expungement of an allegedly
inaccurate identification record back to the trial court for full development of
the facts.
No further argument is necessary to prove that law enforcement is now faced
with a new problem of serious dimensions. It extends to all lawful uses of the
criminal identification record, not to employment situations only. If the FBI, as
the custodian of these records, should be required to expunge all arrest notations
for which dispositions are available but not reported, every element of the criminal
justice system will be handicapped, deprived of infcjrmation pertinent to the
protection of society. The absence of pertinent arrest data which could have been
shown, had only the final disposition been reported, will handicap the investi-
gating officer, the prosecutor and, where conviction is had, the sentencing judge
and the prison and parole authorities.
There is an answer to this problem, one answer and one only. Report the final
disposition in each case at whatever level it occurs — police, prosecutor, or court.
Each and every contributing agency should gear its operations as necessary to
this end. The public interest in safety from criminal attack demands it, as well
as our own interest, and the interests of other elements in the criminal justice
sj'stem, in performing professionally and efficiently toward that same objective.
I ask your complete and continuing cooperation in this mutual effort for the
public good. Specifically, I ask that you expend extra effort to obtain disposition
data and that, where necessary, you devise new ways of insuring that this essential
information is collected and made available to complete the identification records
at both state and national levels.
Very truly yours,
John Edgar Hoover, Director.
U.S. Department of Justice,
Federal Bureau of Investigation,
Washington, B.C., November 21, 1968.
Letter to All Fingerprint Contributors Re FBI Identification
Services
Dear Sir: Upon receipt of the final disposition of an arrest previously reported
to the Identification Division by means of a fingerprint card, it is necessary to
associate the disposition with the correct arrest record. In instances where the
local arrest number or FBI number is not furnished, every effort has been made
in the past to correctly identify the incoming disposition by conducting searches
in our name files using available data on the disposition form such as name of
subject, fingerprint classification, date and description of charge and name of
contributor. Because of the tremendous work load in the Division, it is no longer
feasible to conduct extensive searches in our name files in an effort to identify
dispositions without identifying numbers. Accordingl}^ effective January 1, 1969,
dispositions received without a local arrest number and fingerprint classification or
an FBI number, will not be processed and will be returned to the contributing
agency.
One of the streamlining procedures employed in the Division is the preparation
of certain index cards for our name files by copying a portion of the fingerprint
card with appropriate reproduction equipment. It is, therefore, imperative that the
name of the subject be typed or plainly printed and not written in longhand on
the fingerprint card.
Your full cooperation in the above matters would be very much appreciated.
Very truly yours,
John Edgar Hoover, Director.
197
U.S. Department of Justice,
Federal Bureau of Investigation,
Washington, D.C., September 2S, 1966.
Letter to All Fingerprint Contributors Re Identification
Records
Dear Sir: The value of reporting to our Identification Division the disposition
of an arrest has been discussed in prior letters to all fingerprint contributors.
By letter dated April 2, 1962, the cooperation of all contributors was sohcited in
reporting only final and not interim dispositions such as "held for grand jury,"
"pending," etc.
Since the final disposition of an arrest is a most important part of an identifi-
cation record and serves to complete the history of the offense in the minds of
all who later review the record, your cooperation in furnishing final dispositions
is again being requested. Report such dispo-iitloas, if known, on each fingerprint
card submitted. If unknown when fingerprint card mailed, withhold submission
of disposition until case resolved and reply to fingerprint card has been received
and then use our disposition form R-84 whenever possible.
If our reply bears an FBI number, this number should be included on the
disposition sheet. In the absence of an FBI number, as in the case where no prior
record was located and you received our form 1-A, make certain to include on
disposition sheet the name exactly as it appeared on the fingerprint card, finger-
print classification, and your arrest number. In instances of this type a number of
contributors are returning form 1-A instead of submitting the fingerprint classifi-
cation and arrest number. This greatly facilitates identifying the record in our
files and I would like to encourage all contributors to follow this practice whenever
possible.
Very truly yours,
John Edgar Hoover, Director.
U.S. Department of Justice,
Federal Bureau of Investigation,
Washington, D.C., April 2, 1962.
Letter to All Fingerprint Contributors Re Duplicate Fingerprint Sub-
missions Arrest Disposition Data
Dear Sir: Our Identification Division has experienced a ten per cent rise in
fingerprint receipts thus far this fiscal year. Adoption of streamlining measures by
the FBI plus strict adherence to uniform procedures by all participating agencies
are the only two practical ways of combatting this increased work load.
We certainly wish to express our appreciation to the many agencies which co-
operated so willingly in curtailing duplicate fingerprint submissions in response to
our letter of March 28, 1961. Substantial advances have been made in this field
which are most gratifying.
For the benefit of all, I would like to again briefly state our views as regards
multiple fingerprinting. Many jurisdictions require fingerprinting as a mandatory
procedure incidental to an arrest or incarceration. The FBI's program to eliminate
duplicate fingerprint submissions is not intended to conflict with these require-
ments. We are merelj' asking that law enforcement agencies in the same area
work together to insure that only one set of fingerprints for each arrest or incar-
ceration is forwarded for search by our Identification Division.
Multiple fingerprint submissions are unnecessarily expensive since usually the
fingerprint jacket relating to a particular individual is out of file when the second
and possibly the third fingerprint card arrives. To locate the jacket, it then be-
comes a costly and time-consuming task. In some localities the arresting agency,
and in others, the city or county jail have helped by stamping the reverse side of
each fingerprint submission with a notation to send a copy of our reply to one or
more interested agencies, thus eliminating fingerprint submissions by those
agencies. The duplication problem has also been solved by having the first agency
submitting prints request multiple copies of our reply which, in turn, are then dis-
seminated locally as required. We appreciate that procedures will vary in different
areas and while we are always willing to be consulted on unique situations, the
final decision as to what is done rests with the agencies primarilj^ concerned. I
firmly believe that the key to eliminating multiple fingerprint submissions for the
same arrest or incarceration lies in close cooperation and a concerted effort by all.
198
Another sphere in which you can help is to use the standard forms which we
provide free of charge to all agencies utihzing the facihties of our Identification
Division. These forms are listed on the cover page of each Law Enforcement
Bulletin Insert. The use of other than FBI standard forms serves to retard our
processing of identification data.
One form in particular which we feel deserves your special consideration is the
Disposition Sheet, Form R-84. We have observed that many arrest dispositions
have been submitted which are not final, such as "held for grand jury," "released
on bond" and "pending." Other dispositions, such as "District Court appeal"
and "issuance of a bench warrant," while technically final as far as the contributor
of prints is concerned, add nothing of value to the FBI record. We consider these
to be interim prosecutive steps and do not post them. Some further action obvi-
ously must be taken in these instances before the case may be considered finally
closed. By continuing to submit such interim rej^orts, man-hours are consumed
by your staflf and ours which could be more productively spent on other work.
Additional problems encountered in connection with some arrest dispositions
are; (1) illegibility, (2) use of colloquial terms not understood in other sections
of the country, (3) use of numerical code citations and incomplete data. If our
identification records are to be meaningful to the thousands of law enforcement
and governmental officials who will be reviewing them for many years to come,
we should insure that disposition data reported will be readily understood in all
parts of the country. With regard to incomplete dispositions, the main oversight
is "period of incarceration." This, of course, is very pertinent to any identification
record. It is realized that in some states the period of incarceration is not fixed
by the court. In such instances dispositions submitted should show the sentence
as "indeterminate."
Thank you for your continued cooperation in these and all other matters
designed to improve our fingerprint identification services.
Very truly yours,
John Edgar Hoover, Director.
Senator Burdick. Do you have any policy in regard to releasing
this information to credit bureaus?
Mr. Gray. We do not release it.
Senator Burdick. You do not?
Mr. Gray. The FBI does not; no, sir.
Senator Burdick. If it showed up in their report it is an assumption
that it came from a police station?
Air. Gray. Yes, and if we know about it — it could be that the police
station, the police agency, would be subject to our o^^^l sanctions — we
would say, "We are not going to service you any longer if you are
going to behave in this manner."
Senator Burdick. So far as your office is concerned you release this
information only to law enforcement agencies?
Mr. Gray. Only to a contributor, yes.
Senator Burdick. That is all.
Senator Kennedy. Mr. Gray, some of the areas which I will touch
on have been touched on by other members of the committee but, with
your indulgence and patience, we ^nll review some of these areas. I
am sure the fact that you have thought about them and responded to
them perhaps even make the responses easier for you.
As m3^ colleagues have pointed out, there has been some question
about the politicization of the FBI, and Senator Bayh and others
have queried you about different statements and speeches and the
appropriateness of such speeches, and I think one of the speeches,
which may have been included in the record, which I imagine perhaps
sets out in as great detail as any your commitment toward the
administration, was the one that you gave on the 25th of Jul}" 1969,
199
when you were tlie Executive Assistant to the Secretary of HEW, to
the appointees of the Department. Do you remember that speech at
all?
Mr. Gray. Yes, I do, I wTote every word of it.
Senator Kennedy. Then I believe a national magazine took certain
quotations of that speech and, at a later time, you indicated that the
quotes had been taken out of context.
Mr. Gray. That is right.
Senator Kennedy. And then you issued
Mr. Gray. I prepared a memorandum.
Senator Kennedy. You prepared a memorandum, and in that
memorandum you quoted at some length the preceding paragraphs. I
believe I have the copy of that memorandum here, and I will read
those earlier paragraphs, and if for some reason or another it does not
follow — I see you have the copy of the speech.
Mr. Gray. Yes; I do, Senator.
Senator Kennedy. Now, you indicated in a press release that the
quotes had been taken out of context. If the Time article and your
memorandum have not been included in the record, we wdll include
that as part of the record:
Mr. Gray. All right. Senator.
(The documents referred to follow:)
Address by L. Patrick Gray III, Executive Assistant to the Secretary,
Department of Health, Education, and Welfare, to all Appointees in
THE Department at the Deputy Assistant Secretary Level and Below,
July 2.5, 1969
I am going to talk to you about .some lessons learned in the first six (6) months.
The approach will be practical, but threaded throughout will be the lofty ideals
and the great concerns we have as we join together in HEW to serve the President,
the Secretary and the people of our Nation.
At the risk of being tagged here and now as an over 30, "turned off" reactionary,
let me emphasize to you the importance of the concept that we are here to serve,
not to be served — that we are here to serve, not to enhance our own perfectly
normal, human selfish interests. This may be out of tune with some of the thinking
surrounding us today.
Each of us is possessed of our own desires, ambitions and goals. This is normal.
This is commendable. At the same time, when we embark upon a career in the
service of our government, whether that career is to be short term or long term,
we must be quite willing to subjugate our own personal goals to a deep, personal
commitment to serve our President, our Secretary, and our Nation.
This commitment must be our homing beacon throughout our career in the
service of our government.
Each one of us is here in HEW because Richard Nixon was elected to the high
oflfice of President of the United States. Further we are here because Secretary
Finch has seen fit to place trust and confidence in us and to approve our selection
to fill a position in HEW.
In short we owe our positions to the capability of the President to come off
the mat, so to speak, and drive through hard, vigorous years of campaigning to
win the nomination of the Republican Party, and then go on to win the Presidency
of the United States with the valiant help of hundreds of thousands of dedicated,
hardworking supporters, campaign workers, and contributors.
So also are we here because Secretary Finch has seen fit to ask us to serve with
him and to help him move this Department forward as he and the President seek
the solutions to the people problems which, if not solved, might well rupture and
destroy the society which the people of our Nation have created.
Obviously, we are a chosen few, an elite group — make no mistake about it —
there are thousands of Republicans who are knocking at the door and who would
be pleased to be in our positions.
200
Appreciate this hard fact of life. Appreciate the fact that every single member
of the opposite political party is working hard day and night to ensure that the
President of the United States is hampered and harassed in carrying out his
programs and that the President of the United States is not reelected to serve a
second term.
This is a real hard political fact of life. This is in keeping with the nature of our
political system. Without such a system, one party government could produce a
totalitarian state. We accept this fctct of life; so does the opposing party. Ac-
cordingly, do not retch or quiver when we insist that the preponderant majority
■of our colleagues — political appointees — be members of our own party.
Again it is plainly obvious that we must be dedicated and devoted "to the con-
cept that our Republican President will be a great President, that his programs
will be successful, and that he will be reelected to a second term.
Above all other qualities of character that we hold near and dear, we must have
deep, abiding, sincere loyalty to our President and to our Secretary.
Earlier I placed great emphasis on service. Now I want to drive "home hard the
emphasis on loyalty. I do not speak of blind, automatic loyalty. I speak of a sincere,
an inteUigent, a freely made decision to join President Nixoii and Secretary Finch
because we beheve in them, trust them, understand the goals and objectives they
hold, and desire to support them with the deepest sense of dedication and total
commitment.
Should there be anyone of you here present today who cannot make this com-
mitment, you must — in order to maintain your own dignity, self-respect, and in-
tegrity— examine deeply your own hearts and minds and reach a decision — to
serve or not to serve.
Do not today understand me to be saying that each of you is to consider your-
self as & fanatic, blind, unreasoning, partisan Eepublican of the brand often carica-
tured by Herb Block and others who are determined that an enlightened, human,
understanding Republican President shall not succeed.
No. I am saying that you are here because you have made a profound commit-
ment to support with total dedication the President of the United States; that
you have made this commitment inteUigently because you wish to join with him
\n bringing this country together again; that you have made this commitment
intelligently because you wish to join with Secretary Finch in assisting him to
perform the tough tasks which lie ahead — tasks which must be performed well in
order that the President may accomplish his objective.
Our Nation has elected a Republican President. We have a Republican Ad-
ministration. We have Republican approaches to the problems of our people. We
have the knowledge of the President's goals. We have the common sense to know
the desires and objectives of the President and the Secretary — we must have the
Joyalty, the courage, and the commitment to do their will — not our will. This
means, plainly and simply, that we get on the track with the President and the
;Secretary and that we stay there and track with them.
You may say, "I am not political" — "I am an Independent" — "I do not care
what party is involved, I vote for the man" — "Politics is a dirty business," and
*o on. Frorr the vantage point of my ancient age, let me assure you that no Ameri-
can can afford to ignore politics, to ignore the machinery of government, to adopt
an attitude of "Let George do it." This attitude is guaranteed to ensure the de-
mise of the two party S3'stem — our form of democracy. No American can af-
ford to avoid involvement, particularly in today's world, when the thing to do
is to become involved, to participate, to take a position.
Now let's go on to other lessons learned:
Loyalty includes also a dedication to your immediate superior and to those who
work with you in our cause, on our team.
Loyalty includes an avoidance of criticism of our leaders and of our colleagues.
Criticism which is destructive in nature is cancerous — it will destroy us and our
entire team. Snide remarks and facetious comments lightly made often come back
to haunt us. Too often have I heard this form of banter engaged in innocently. Too
often have I seen the results published in newspapers or made the subject of
remarks by the boob-tube word mashers.
Loyalty includes having the common sense and decency to deal with others in
a. manner calculated to bring credit to the President and the Secretary. We are
the President's people — we are the Secretary's team — -and when we speak, we
speak fnr the Secretary but we do not speak as the Secretary. We do not wear the
Secretary's mantle. Therefore, while we speak from strength, we do not speak with
arrogance. Courtesy is the key. Our errors here become the Secretary's errors and
place him in a very delicate position. Instead of strengthening him, we weaken him
201
Loyalty includes the touching of all required bases as we set out on our daily
rounds to carry out the will of the Secretary. We deal directly and candidly. We
deal with those who ought to linow and who have a responsibility to the Secretary,
too. In short, we do not "end around."
I believe that I may have placed the concept of service and loyalty in the
proper perspective and I want to go now to a few more pitfalls and prattfalls that
can harm us, the President, and the Secretary.
Not one problem that we handle in HEW is simple. This is the lot of a Depart-
ment responsible for the problems of people at the national level. Accordingly,
not one task assigned to you is of a nature such that you can give it the so-called
"light touch." You have to shred the problem; look at it from every angle; learn
to work in depth; learn to dig hard; learn to turn in a work product that is as
thorough, as logical, and as clear as you can make it. You should be concerned
with the overview, the big policy, the grand decision. But you also are in a training
period, a development period — we all are. Do the tasks assigned well and you will
find that your personal job satisfaction is enhanced and your responsibilities are
increased. Above all do not seek out only the so-called "glamour work;" put your
shoulder to the wheel and be eager to tackle the "nitty gritty" chores, tot>.
The President and the Secretary appreciate another hard fact of life. Simply
stated it is that intelligent members of an elite group — our team-^will generate
a wide diversity of views and rather strong opinions regarding the highly charged
issues facing our Nation today. This is great and we do not want to stifle the
minds and stagnate the thought processes of the members of our team. At the
same time, and although we believe in and foster the thorough airing of our views
and opinions within our own family, we must present a united front in support of
a decision once made by the President or the Secretary. Our support must be
total and absolute.
In conversations with others, we do not refer to RHF as " Bob." He is the Secre-
tary to all within the Department and to outsiders. Be extremelj' careful at all
times to maintain the dignity of his office, but do it with warmth and humility —
not with arrogance. We have enough problems in HEW now without creating
more by being inept or overbearing.
Even though each of us is close to the Secretary, resist at all times the tempta-
tion to enhance our own image by "puffing," or b,y our actions demonstrating how
close we are to the Secretary'. We would not be here if we were not close to the
Secretary and those with whom we will come in contact know this political fact
of life. You will demean yourself and the Office of the Secretary by taking "name
dropping" advantage of your position.
Lobbjnsts — you will come in contact with them; they have a legitimate reason
for existing. Be a courteous listener, but a most careful talker. Make no com-
mitments whatsoever in the name of the Secretary. Moreover, do not even talk
in such a manner to "lead on" a lobbyist — j'ou trap yourself in a very difficult
situation and you can hurt RHF badly by this sort of conduct. Again, be a
courteous and attentive listener, but a most careful talker.
Telephone Conversations— The telephone is obviously an invaluable com-
munication tool, but do not say in a telephone conversation that which you would
not care to see in print the next day. Once again, the concept is that of tact,
courtesy, patience, understanding, care and concern — but no commitments in
the name of the Secretary, and no "puffing."
Mail — The principles I have spoken of thus far apply as well to all mail leaving
the Department. When preparing correspondence for the Secretary's signature,
or when reviewing it, never treat it lightly, no matter how simple the subject.
The reasons are obvious — every letter portrays the image of our office and of the
Department; further every letter reflects the substance of our positions and poli-
cies.
Security — Recent examples should be sufficient to impress upon each of us the
critical importance of the general security of our office and our official, as well as
unofficial, papers. Every Department of government is loaded with prying eyes — •
eyes that are prying for one reason or another. Be assured that none of this prying
has as its objective the enhancement of the Nixon Administration or the enhance-
ment of our Department. We deal with critical issues of great importance to manv
diverse groups in our land. Be mindful of security at all times; above all leave a
clean desk when you leave for the day and be certain that critical papers are
under lock.
202
The effective fvinctioning of any group is related to the degree of cohesiveness
and common purpose which has been established and accepted throughout the
grf)up.
Let's look to see if we have the ingredients in our make-up to generate that sense
ofrcohesiveness and common purpose.
Why are we here?
A. Because we believe in President Nixon and Secretary Finch.
B. Because we are dedicated to them and their work.
C Because we ask only to serve; not to be served.
D. Because we have no greed for personal aggrandizement.
E. Because we feel a deep sense of personal pride, honor and humility in
being asked to serve.
How do we operate?
First, we will operate as the Secretary desires us to operate.
Second, our mission is to do just as much for the Secretary as we can to
remove from his shoulders vninecessary burdens.
Third, we do our work in accordance with the guidelines laid down by the
Secretary.
Fourth, we are staff assistants to the Secretary — not decision makers or
policy makers, even though we may well iiave a strong input to him prior
to the moment decisions are made and policies established. Once made, we
support them to the hilt!
Fifth, we operate in such a way as to reflect credit upon the Secretary for
choosing us to occupy the important positions to which he has appointed each
of us.
Sixth, we do niit throw around the weight of the Secretary's Office. We are
•courteous and considerate in all of our dealings with the people in the Depart-
ment, yet we are not to be hoodwinked or misled into presenting slanted
information to the Secretary.
I believe that each of us can agree that we have the ingredients required to
function effectively in behalf of the President and the Secretary.
Our objective — -to assist to the fullest extent, the Secretary in his objective to
make this the best Department in the Nixon Administration; to establish this
Department as a Department on the move, a Department composed of com-
passionate and understanding people who are determined to generate and manage
plans and programs designed to enrich the lives of all Americans; to make this
Department so attractive and so meaningful in its work, that menibers of the
civil service, and others not now in government, will be eager to join HEW and
assist the Secretary to achieve his objectives. Imaginative, creative, dedicated,
and competent people form the heart and fiesh, the bone, sinew and muscle of any
organization whether it be the corner grocery store, or a major Department of
the Government of the United States. We must have them and we must work
with them in such a manner that they can realize their full potential in the best
interests of the people of the United States.
[Time maera'/inp, .Tnnimrv In, 1973]
The Administration
"tattletale gray"
The Federal Bureau of Investigation likes to present itself to the i)ubiic as a
well-oiled crime-fighting monolith that functions without so much as a ping. If
that image was never entirely accurate in J. Edgar Hoover's day, it is even less
true now under the bureau's acting director, L. Patrick Gray, .56. More and niore
the bureau's internecine troubles have been surfacing — mainly because Gray's
own agents are privately protesting his policies. The most recent and glaring
example: Gray's reshuffling of nine veteran members of his headquarters staff,
which, among Other things, wiped out the bureau's longstanding Crime Records
Division. For years it was an elite outfit that served Hoover as a liaison with
Congress and the press.
Gray insists that the men are being given jobs that are every bit as important
as their previous ones, and that several of the assignments are promotions. How-
ever, at least two of the men chose to resign. Gray claims that he is getting rid
of "Hooverites," yet some agents accuse him of retaining the most hated of
Hoover's hard-line policies.
203
Among these policies are the harsh discipUnary measures that agents consider
mijust; the persistence of power cUques that virtually run the bureau; the i^erpet-
uation of Hoover's notorious "blacklist" of people to be shunned, socially and
otherwise, by FBI agents; the maintenance of so-called penal coloniesj field
offices to which agents in disfavor are banished; and leaking FBI information to
embarrass officials Gray considers to be his enemies.
Still, nothing has damaged morale at the bureau as much as one of Gray's
own innovations — the publicizing of his disciplinary actions. He terms it "airing
the linen," but around the Vjureau these days the practice has earned him the
nickname "Tattletale Gray."
Intelligence. — Most of those sound like basic housecleaning problems that in-
evitably crop up when an organization of the size and complexity of the FBI
loses the only chief it ever had. But the nagging problem that will not go awa.y is
Gray's tie with President Nixon. Whatever Hoover's flaws, no one coiild accuse him
of playing partisan politics; he intended the bureau to be above such doings and
made that ideal stick during his reign.
Gray left the Navy in 1960 to join the staff of Vice President Richard Nixon,
and served on the Nixon campaign teams in 1960 and 1968. There have been dis-
turbing indications that Gray is not the wholly apolitical administrator that he
now claims to be. Back in 1969, when he joined the Health, Education and Welfare
Department, he told a meeting of Administration appointee.s, "Do not retch or
quiver when we insist that the preponderant majority ;of our colleagues — po-
litical appointees — be members of our own y)arty." He adried: "Loyalty includes
an avoidance of criticism of our leaders and of our colleagues. Criticism which is de-
structive in nature is cancerous — it will destroy us and our entire team."
Gray coached Richard Kleindienst in his testimony before the Senate Judiciary
Committee during the I.T.T. controversy, and last summer, at the request of the
White House, made campaign speeches for Nixon. He began his talks in Ohio
after a presidential aide told him that the state was "crucially vital to our hopes in
November." In September he ordered his agents to collect political intelligence for
Nixon, and within the bureau, defended his actions by simply shrugging:
"Wouldn't you do that for the President?" Although the request came from a
member of Nixon's staff, the White House said later that it was improper to give
the assignment to the FBI.
An even pricklier matter is the ongoing Watergate bugging case and the White
House anger about news leaks. Several agents complained that Gray's spot in-
spection of the Washington field office in search of the leaks was actually slowing
down the W"atergate investigation. Recently Gray transferred three FBI officials
who pushed the Watergate investigation into the White House and presidential
re-election committee. Two accepted the transfers. The third quit the bureau.
Said one Washington agent: "I've been around here a long time, and no one has
ever questioned my integrity. Now, because the White House is upset, my in-
tegrity has been challenged tv/ice in one week."
Gray did relax Hoover's mandatory weight limits — then turned around and
disciplined an agent for disobeying an order to lose weight. On the other hand,
he refused to censure an agent whose son had been involved in a drug scandal or to
discipline an agent for delinquent reports on some 72 cases to which he was
assigned. Said Gray sensibly: "I might have some overdue reports if I was han-
dling 72 cases." He has also reduced some padded conviction statistics Hoover
used to cite to make the bureau look good — although a drunken Indian arrested
on a reservation may still end up in the FBI's crime figures.
Thus far, Nixon himself has had nothing but praise for Gray, but it remains to
be seen whether the President will permanently give Gray the coveted chair.
January 10, 1973.
[memorandum]
Subject: Time Magazine Article of January 15, 1973 Entitled "Tattle-
tale Gray
The above article includes a number of false, inaccurate, or misleading state-
ments. I will deal with each one of them individually below.
1. "Gray's own agents are privately protesting his policies"
On December 19, 1972, I asked Acting Associate Director W. Mark Felt to
conduct a survey of morale among the agents throughout the Bureau. Mr. Felt
204
and Assistant Director Leonard W. Walters contacted the heads of 21 field
offices. The results were that morale among the agents is at least as high as
ever or at most higher than ever in the history of the Bureau. Some sample
comments follow:
"Outstanding, never higher; exuberance expressed with frequency bv Agents
at innovative changes; deep impression of Mr. Gray as a leader upon "his visit;
Agents working freely on weekend urgent assignments with no grumbling; 99%
of Agents highly disposed toward innovative changes made by Mr. Gray; in-
dividual production and accomplishments high which is proof of the pudding;
Agents giving of their own time with gusto; great teamwork among Agents
demonstrating high morale; Agents and clerical personnel alike glowing with
comments concerning impression of Mr. Gray and his leadership; never observed
morale higher among Agents; morale 100%; high impression of Mr. Gray's
acceptance of responsibility for a correct law enforcement decision in aborting
skyjacked flight at Orlando, Florida (same expression by local police officials) ;
morale never higher not only among rank and file Agent personnel but super-
visory staff as well; unanimous support of innovative changes of Mr. Gray;
terrific impact of Mr. Gray's visit and changes wrought; best morale ever ob-
served in any office; high morale throughout field."
2. "Gray's reshuffling of nine veteran members of his headquarters staff . . . wiped
out the bureau's longstanding Crime Records Division"
On December 1, 1972, I announced that I had transferred to mv immediate
office responsibility for relations with Congress and the news media. In addition,
I announced that I had requested a management survey of the remaining func-
tions of the Crime Research Division. That survey was completed on December 6
and recommended transferring all remaining functions of the Division to several
other divisions. This was approved by me on December 12 and effected by Decem-
ber 19. Therefore, the Crime Research Division had been abolished by that date
and its i^ersonnel were reporting to their new supervisors in other divisions.
The nine transfers referred to were issued December 29, 1972, and could not
have wiped out a then non-existent Crime Research Division. Eight of them
involved members of the FBI who had been assigned previously to the Crime
Research Division but were now functioning in their new divisions. The ninth
involved an official of the General Investigative Division. Listed below are the
transfers, none of which involved any change in rank or salary, but all of which
involved substantially greater responsibility and less supervision in the perform-
ance of the new duties.
Name Old assignment New assignment Disposition
James F Bland Director's office, SAC, Albany Retired
Harold P. Leinbaugh.. do ASAC, Detroit- Do
Donald G. Manning Training division ASAC, Pliiladelphia Do
George W. Gunn do ASAC, San Francisco.-. Pending
William H. Stapleton.- Administrative division ASAC, Chicago Retired.
George T. Quinn Training division Inspector . Accepted.
Gordon E. Mahnfeldt Associate director's office .__ ...do Do
Bernard M. Suttler Training division (Washington, D.C.)... National Academy "(QuanTico)."..".." Retired!
Henry A. Schutz, Jr General investigative division Inspector Accepted.
3. "Gray claims that he is getting rid of 'Hooverites' "
I have never stated or claimed that I am getting rid of Hooverites. In fact, I
have specifically stated and been quoted in the press to the contrary. (Washington
Star-News, January 3, 1973, p. A 17)
4. Gray has retained the most hated of Hoover's hardline policies :
(a) "harsh disciplinary measures"
I have disciplined members of the FBI when appropriate and only to a
degree commensurate with the severity of their misconduct.
(b) "the persistence of power cliques that virtually run the bureau"
All authority in the Bureau reposes in the Acting Director. Certain author-
ity is delegated by him to the Associate Director, the Assistant Directors in
charge of the various headquarters divisions, and the Special Agents in Charge
of the field divisions. Perhaps it may be true that "power cliques" may have
controlled the selection of personnel for advancement in the FBI in the past,
• but this is no longer true. Selection Boards composed of Assistant Directors
205
and SACs now review records of FBI personnel and recommend to the Acting
Director those best quaUfied for advancement.
(c) "the perpetuation of Hoover's notorious 'blacli-list' of people to be shunned,
socially and otherwise by FBI agents"
I know of no such list or of the perpetuation of it.
(d) "the maintenance of so-called penal colonies, field offices to which agents in
disfavor are banished"
I have never heard of nor used the term "penal colonies" with reference to
the field offices. When circumstances warranted, I have transferred Special
Agents in Charge from larger to smaller field offices to reduce their supervisory
responsibilities and thus given them a chance to improve their own cap-
abilities.
(e) "leaking FBI information to embarrass officials Gray considers to be his
enemies"
I have not and do not leak information to the press. In all my contacts
with the news media, I have done all I could to deal openly and fairly with
them at all times.
(/) publicizing of disciplinary actions — "He terms it 'airing the linen' "
I have never used the term "airing the linen" with refei'ence to any dis-
ciplinary action. Furthermore, I have never publicized a disciplinary action.
I did give a full and complete statement on announcing the retirement of
Wesley G. Grapp, the former SAC in Los Angeles. However, this was done
solely to protect the Bureau and give all the facts to counter false reports and
rumors that this was the first case of scandal or corruption in the Bureau.
5. "Gray . . . served on the Nixon campaign teams in 1960 and 1968."
I served in the Office of the then Vice President Nixon from about July 1, 1960
to January 1961. I did not serve in the campaign organization of the President
during 1968.
6. Gray "told a meeting of Administration appointees, 'Do not retch or quiver
when we insist that the preponderant majority of our colleagues — political
appointees — -be members of our own party." He added: "Loyalty includes an
avoidance of criticism of (jur leaders and of our colleagues. Criticism which
is destructive in nature is cancerous — it will destroy us and our entire
team."
These quotations are extracted from a talk I gave to all political appointees at
HEW on July 25, 1969. They are, of course, taken out of context. The full context
is as follows: "Appreciate the fact that every single member of the opposite
political party is working hard day and night to ensure that the President of the
L^nited States is hampered and harassed in carrying out his programs and that
the President of the United States is not re-elected to serve a second term."
"This is a real hard political fact of life This is in keeping with the nature of ov.r
political system. Without such a system, one party government co ild j roduce a
totalitarian state. We accept this fact of life; so does the opposing party. Accord-
ingly, do not retch or quiver when we insist that the preponderant majori.y of our
colleagues — political appointees — be members of our own party."
Later in the same speech, !_ stated:
"Loyalty includes also a dedication to your immediate superior and to those who
work with you in our cause, on our team."
''Loyalty includes an avoidance of criticism of our leaders and of our colleagues.
Criticism which is destructive in nature is cancerous — it will destroy us and our
entire team. . . ."
"The President and the Secretary appreciate another hard fact of life. Simply
stated it is that intelligent members of an elite group — our team — will generate a
wide diversity of views and rather strong opinions regarding the highly charged
issues facing our Nation today. This is great and we do not want to stifle the
minds and stagnate the thought processes of the members of our team. At the
same time, and although we believe in and foster the thorough airing of our views
and opinions within our own family, we must present a united front in support
of a decision once made by the President or the Secretary. Our support must be
total and absolute."
7. "Gray coached Richard Kleindienst in his testimony before the Senate Judici-
ary Committee during the I.T.T. controversy"
As Deputy Attorney General-Designate, I assisted the Attorney General in
preparing for his confirmation hearings before the Senate Judiciary Committee.
91-331 — 73 14
206
~No one coached Mr. Kleindienst to my knowledge. Also in that capacity, I later
acted upon official requests and inquiries from the Chairman of the Committee.
8. "Gray . . . made campaign speeches for Nixon. He began his talks in Ohio
after a presidential aide told him that the state was 'crucially vital to our
hopes in November' "
I gave no campaign speeches whatever for the President. I spoke before the
City Club of Cleveland, Ohio on August 11, 1972, on the subject of "Freedom
Under Law", at the invitation of the City Club. I made no mention whatever of
the President, his opponent, or the political canqjaign. The speech dealt mainly
with the problem of crime in a constitutional democracy. That was the only speech
I have given in the State of Ohio since being named Acting Director. It is true
that I did receive a White House memorandum regarding this speech. A copj- is
attached.
9. "In September, he ordered his agents to collect political intelligence for Nixon,
and, within the bureau, defended his actions by simplj' shrugging: 'Wouldn't
you do that for the President?' "
I have never made any such statement, within the Bureau or anywhere else.
I have made no public comment whatever on this matter.
Under date of September 1, 1972, Geoff Shepard of the White House staff,
prepared a memorandum for the l^eputy Attorney General on the subject of
"Information for ('ampaign Trips: Events and Issues." This requested two
categories of information: (1) identification of the substantive issue problem areas
in the criminal justice field; and (2) a list of events relating to the criminal justice
area that would be good for John Ehrlichman to ct)nsider doing. The memoiandum
indicated an interest in this information in l.o specified states. It requested the
information b}' close of business on September 7, 1972.
Under date of September 8, 1972, the office of the Deputy Attorney General
forwarded to the off.ce of the Acting Director a copy of the White House memo-
randum requesting an evaluation of the questions. This noted that the White
House deadline already was passed and asked for a response as quickly as possible.
The memorandum from the office of the Deputy Attorney General was processed
by a member of his staff, not by the Depiity Attorney General.
The memorandum from the office of the Deputy Attorney General was received
in the office of the Acting Director of the FBI at 10:32 a.m. cm September 8, 1972.
Mr. Gray was out of Washington at the time and the matter was handled bv
his Executive Assistant, David D. Kinley. He forwarded it to the Assistant
Director t)f the Crime Records Division, Thomas E. Bishop. Mr. Bishop discussed
the matter with Acting Associate Director W. Mark Felt, and thereafter Mr.
Bishop had one of his subordinates prepare a teletype to 21 FBI Field Offices
which he approved to be sent late on September 8, 1972, setting a deadline of
the opening of business on September 11, 1972. This teletype set out virtually
verbatim the text of the request in the White House memorandum of Septem-
ber 1, 1972.
The material received from the Field Offices in response to the teletj-pe was
summarized into a memorandum on September 11, 1972, which was approved
by Messrs. Bishop, Felt and Kinley and was then delivered to the office of the
Deputy Attorney General late on the same date. The information supplied by
the Field Offices required no investigation to obtain it — it was information readily
available within the Field Offices pertaining to forthcoming meetings and con-
ferences on matters of similar interest in law enforcement and criminal justice
fields.
Mr. Gray was out of Washington during the entire period of September 8 to 11,
1972, returning to the city after 7:00 p.m. on September 11, 1972. His first knowl-
edge of this matter was on the late afternoon of September 12, 1972.
Personnel involved in the handling of this project have stated they did not
question the propriety m complying with the request since it dealt with informa-
tion of a broad nature concerning police and the criminal justice system, since it
had been requested by the White House, and since the request had come through
^he offices of the Deputj' Attorney General and the Acting Director.
207
10. "Gray's spot inspection of the Washington field office in search of the leaks
was actually slowing down the Watergate investigation."
I have ordered no spot inspection of the Washington Field Office to determine
the source of leaks in the Watergate case. I have heard no complaints whatever
that tlie Watergate investigation was slowed down b\- me.
11. "R.ecently, Gray transferred three FBI officials who pushed the Watergate
investigation into the White House and presidential re-election committee.
Two accepted the transfers. The third quit the bureau."
I have transferred two members of the FBI involved in the Watergate investi-
gation. On September 29, 1972, at his own request, I re-assigned the Assistant
Director in charge of the General Investigative Division to his former position as
Special Agent in Charge of the San Francisco Field Office. Also, on September 29,
1972, I re-assigned the Special Agent in Charge of the Washington Field Office to
head the St. Louis Field Office because he allowed certain false and misleading
information to be reported to FBI headquarters concerning an incident during an
anti-war demonstration in May 1972.
The third individual was never offered a transfer. He headed the Accounting
and Fraud Section of the General Investigative Division. I had no intention of
reassigning him because of his demonstrated expertise in this held. However, on
December 6, 1972, he resigned voluntarily to take an investigative position v/ith
HUD.
12. "[Gray] refused to censure an agent whose son had been involved in a drug
scandal"
The case referred to must V^e that of Special Agent Francis E. Burke. On
March 14, 1972, he was censured, placed on probation, and reassigned from the
Coeur d'Alene, Idaho, Re-^ident Agency to the Milwaukee office. This action was
taken by Mr. Hoover becatise Burke failed to report to the Bureau allegations
jiiade to the Coeur d'Alene Police Department that his son was dealing with
narcotics and stolen goods. Investigation by the local Police Department pro-
duced no concrete evidence in support of these allegations. On May 25, 1972,
Burke wrote me requesting reassignment from Milwaukee to Coeur d'Alene
because of the poor health of his wife and the fact that his mother was widowed.
On June 15, 1972, I transferred Burke to the Butte office. At the time, I com-
mented to my associates at the Bureati as follows: "(1) Are we surmising that his
al^ility to function effectively has been impaired, or do we have concrete evidence
that it has been impaired? I find none. (2) No father is always certain from one
day to the next of the behavior of his children. Is it a positive requirement that
every SA be able to maintain discipline in his home and that he do so? Some
fathers can, some cannot, and often due to no fault of their own, particularly in
today's clime. (3) Agents have had family problems, and I am sure will have them
in the ftiture. Transfer away from family does not help solve such problems.
(4) I am analyzing tiiis case with the interests of the FBI paramount, but with
consideration for the human factijrs. (5) vSA Burke has been rated Excellent since
1961. (6) Order SA Burke to Butte, the Headquarters city, unless we have to set
up a chain of transfers to fill a vacancy in Milwaukee and thus penalize other
Agents. Let me know. (7) These transfers for reasons foiuid here are abominable."
13. Gray refused "to discipline an agent for delinquent reports on some 72 cases
to which he was assigned. Said Gray sensibly: 'I might have some overdue
reports if I was handling 72 cases' "
I do not recall ever making such a statement. Officials responsible for these
matters cannot recall such a statement, nor do they have any idea what case is
being referred to.
Attachment.
The White House,
Washington, June 13, 1972.
Memorandimi for: Hon. L. Patrick Gray.
From: Patrick E. O'Donnell.
Subject: Freedom's Fortim — The City Club, Cleveland, Ohio.
The City Club has asked our assistance in attempting to secure j'our participa-
tion as a key speaker sometime during the period following July 1, 1972. Since its
founding fifty years ago, Cleveland's City Club has been a focus and one of the
bulwarks of freedom of speech in one of America's great cities. The Club maintains
a deep interest in affairs of government, economics and politics, both national
208
and international. It offers a prestigious meeting place for the open discussion of
important social, political and economic problems.
They meet every Friday at noon and have a 300 maximum attendance. However,
if you were inclined, they could "go public" and provide almost a crowd of any
size you might desire. Both Secretaries Hodgson and Shultz have recently ad-
dressed the Club and just recently Ambassador Bush delivered a well-received
speech.
With Ohio being cruciaUy vital to our hopes in November, we would hope you will
assign this forum sorne priority in planning your schedule. In the event you are
interested, I have full background material available. Incidentally, Under Secre-
tary of Commerce Jim Lynn is quite familiar with the Club.
Many thanks.
Mr. Gray. It was not a press release, though, Senator, I didn't
make a press release. I wrote a memorandum.
Senator Kennedy. I see.
Mr. Gray. And I gave it to certain — I gave it rather wide distribu-
tion.
Senator Kennedy. Yoiu- memorandum says that the Time quota-
tions "are, of course, taken out of context. The full text is as follows. "
Then your memorandum goes on to say — do you want to read that
yourself or do you want me to?
Mr. Gray. I prefer that you read it, Senator.
Senator Kennedy. I would prefer that you would, but that is all
right.
Mr. Gray. Your voice may be stronger than mine at this moment
and that is why I am
Senator Kennedy. You do very well.
Mr. Gray. No, I have a little trouble with my Sucrets. [Laughter.]
Senator Kennedy. As follows:
Appreciate the fact that every single member of the opposite political part.y is
working hard da,y and night to insure that the President of the United States is
hampered and harassed in carrying out his program and that the President of the
United States is not reelected to serve a second term.
This is a real hard political fact of life. This is in keeping with the nature of our
political sj^stem. Without such a sj^stem one-party government could produce a
totalitarian state. We accept this fact of life, so does the opijosing party. Accord-
ingly, do not retch or quiver when we insist that the preponderant majority of
our colleagues, political appointees, be members of our own party.
Senator Kennedy. Now this is where your memorandum stops
quoting, but the speech itself continues, and I would like to read
briefly since the part I have read preceded the language that was
quoted by Time, and the part that follows the Time quote is not
included in the release:
Again it is plainly obvious that we must be dedicated and devoted to th&
concept that our Republican President will be a great President, that his programs
will be successful, and that he will be reelected to a second term.
Above all other qualities of character that we hold near and dear, we must
have deep, abiding, sincere loyalty to our President and to our Secretar.v.
Earlier I placed great emphasis on service. Now I want to drive home hard the
emphasis on loyalty. I do not speak of blind, automatic loyalty. I speak of a
sincere, an intelligent, a freely made decision to join President Nixon and Secretary
Finch because we believe in them, trust them, luiderstand the goals and objectives
the}' hold, and desire to support them with the deepest sense of dedication and
total commitment.
Should there be any one of yon here present today who cannot make thi.s
roTimitme'^t vou must in order to maintain your own dignity, self-respect ar.d
integrity, examine deeply j'^our own hearts and minds and reach a decision to
sci \ c or not to serve.
209
Do not today understand me to say that each of you is to consider himself as a
fanatic, blind, unreasoning partisan kind of Republican, the brand often cari-
catured by Herblock and others who are determined that an enlightened, human,
understanding Repubhcan President shall not succeed.
No, I am saying you are here because you hav^e made a profound commitment
to support the total dedication of the President of the United States and that
you have made this commitment inteUigently because you wish to join with him in
bringing this country together again and you made this commitment intelligently
because you wished to join with Secretary Finch in assisting him to perform the
tough tasks which lie ahead, tasks which must be performed well in order that the
President may push his objective.
Our nation has elected a Republican President, we have a Republican Ad-
ministration, we have Republican approaches to prol:)lems of our people. We
have the President's goals, we have the common sense to know and acknowledge
the common objectives of the President and Secretary, and we should have the
loyalty, the courage and commitment to do their will — not our will. This means,
plainly and simply, that we get on the track with the President and the Secretary
and that we stay there and track with them.
Now an earlier paragraph, on page 2 of your speech, at the top you
have :
Each one of us is here in HEW because Richard Nixon was elected to the high
office of President of the United States. Further we are here because Secretary
Finch has seen fit to place trust and confidence in us and to approve our selection
to fill a position in HEW.
In short, we owe our positions to the capability of the President to come off the
the mat, so to speak, and drive through hard, vigorous years of campaigning. . . .
The part that "Each one of us here in HEW", if you could change
that to FBI, "because Richard Nixon was elected to the high office of
President of the United States." Is this still your feehng?
Mr. Gray. Certainly not, and I expressed that in my statement to
the committee. Remember this statement, Senator Kennedy, was
made to pohtical appointees at HEW at the Deputy Assistant Secre-
tary level and below. I would invite your attention to the pledges I
made in my statement to the committee and I \\ould also saj^ to you
again, as I said in my statement, that I view my return to the FBI as
a return to the service of my coimtry, as distinguished from my former
pursuit while I was helping Bob Finch make the transition at HEW^.
And I think what might also be very important to insure that we
consider both sides of this is to take a look at page 11 and just the
last lines there:
Imaginative, creative, dedicated, and competent people form the heart and
flesh, the bone, sinew and muscle of any organization whether it be the corner
grocery store or a major department of the Government of the United States. We
must have them and we must work with them in such a manner that they can
realize their full potential in the best interests of the people of the United States.
Senator Kennedy. Then we will just wind up this part of the ques-
tioning, you have on page 1 :
At the same time, when we embark upon a career in the service of our govern-
ment, whether that career is to be short term or long term, we must be quite
willing to subjugate our own personal goals to a deep, personal commitment to
serve our President, our Secretary, and our Nation.
Mr. Gray. That is correct, Senator.
Senator Kennedy. Would you reverse that order now?
Mr. Gray. No, you have got to feel it as I felt it and accept the
situation that existed in HEW. There were many people over there
that I called snow shovelers, who were there for personal aggran-
dizement and I was addressing myself to them. The things I liit hardest
210
were the last two sentences that I read, in the last two paragrai^hs,
because there is no doubt about it — anybody who knew me there
over in HEW knew exactly what kind of a critter I was.
Senator Kennedy. That is what we are going to try to find out.
Mr. Gray. I am sure you are, that is why I am here.
Senator Kennedy. Could you just, before getting into some other
questions, could you tell us the latest on Wounded Knee?
Mr. Gray. Yes, sir, the latest word is that I ordered another
ex])erienced SAC in there to assist the SAC I have now in there,
and we also have information that Senator McGovern and Senator
Abourezk and some of their staff members are going out in U.S. Air
Force aircraft. Right at the time I left FBI headquarters, the last
memorandum handed me was that the situation was stable as of this
moment. But I don't know what it is right now.
Senator Kennedy. The memorandum ought to show I have a staff
member on that plane, too.
Mr. Gray. Yes, it does, I already mentioned the Senators, but you
are correct.
Senator Kennedy, This week's Time magazine contains informa-
tion about alleged wiretaps on newsmen, according to the article^
requested by the White House, authorized by the Justice Department,
installed b}' the FBI. How would you respond to those charges?
Mr. Gray. I would have to say, first, that with regard to the gen-
eral matter of wiretaps
Senator Kennedy. No, just on these charges. How do you respond
specifically, I Avill come on to general \\dretap questions later on. How
do you respond?
Mr. Gray. How do I respond to these charges? When I saw this
particular article and checked the records and indexes of the Federal
Bureau of Investigation, and I am told also that the Department of
Justice checked the records of the Internal Security Division of the
Department of Justice, there is no record of any such business here of
bugging news reporters and White House people.
vSenator Kennedy. Well, is that the full answer?
Mr. Gray. That is my answer, yes, sir, that is my full answer.
Senator Kennedy. Did you talk to anyone about it at the White
House or is it just a matter of your answer is ''I just checked the re-
cord and we didn't find any authorization and we didn't do anything
else."
Mr. Gray. That is my answer, that we checked the records and in-
de.xes of the Federal Bureau of Investigation, yes, sir.
Senator Kennedy. Could you describe that in some greater detail.
These are some rather serious charges.
Mr. Gray. I know they are rather serious charges.
Senator Kennedy. Tell us what you did exactly.
Mr. Gray. I went to the records and checked the records.
Senator Kennedy. What records?
Mr. Gray. The records that we keep on national surveillance wire-
taps, the authorizations, the memorandums that are prepared, tlie
reports and the indexes that are filed in connection therewith.
Senator Kennedy. You mean just because it was not, there wasn't
an indication or a mark on an official document, you let it go at that?
Mr. Gray. I don't know what 3^ou mean by a mark.
211
Senator Kennedy. Well, unless j^ou had some official designation-
that this was going on
Mr. Gray. That is correct.
Senator Kennedy (continuing). You didn't feel that you had t05
pursue it any further?
Mr. Gray. That is correct because, you know, Mr. Hoover is not
going to do something like this in the first place.
Senator Kennedy. I am not asking Mr. Hoover.
Mr. Gray. And in the second place
Senator Kennedy. I am asking about you.
Mr. Gray. In the second place, every one of these come across:
my desk, every single one and, in the third place, when I came into
the Federal Bureau of Investigation on May 3, the very first thing
that I said is, I will not permit any wiretaps that are not in accordance
with law. That is my answer, and that is what I have done. That is
what I have said repeatedly.
Senator Kennedy. Well, you have indicated that you reviewed
what wiretaps were authorized, and since any taps on the White
House didn't appear on that list, that is the extent of your investiga-
tion?
Mr. Gray. That is the extent of my investigation.
Senator Kennedy. You don't feel — let me ask a question.
Mr. Gray. Yes, sir.
Senator Kennedy. Did you feel that you ought to talk to anybody
at the White House about this?
Mr. Gray. The White House has already issued a denial, and the
ans^yer is no, Senator.
Senator Kennedy. You didn't talk to anybody at the White House?
Mr. Gray. No, sir; I did not; I have not.
Senator Kennedy. You didn't feel that you should, or had to^
because you had checked this other file in the FBI?
Mr. Gray. That is right. I looked at our records, the ones I work
with every day — these things come through all the time.
vSenator Kennedy. Did you talk with anybody in the Justice
Department about it?
Mr. Gray. I was advised — yes, I di<l — I was ad\'ised
Senator Kennedy. Whom did you talk to?
Mr. Gray. I talked to Jack Hushen, public information officer.
Senator Kennedy. Public information officer?
Mr. Gray. Yes; because he called me, and he said this has appeared
in Time magazine — I hadn't even seen it — "What do you know
about it?" And I said, "You had better start checking the records
in the Department of Justice and we will check the records in the
Federal Bureau of Investigation, and that has got to stop," and that
is all.
Senator Kennedy. Is he in the process of checking them now?
Mr. Gray. He reported to me later that the Assistant Attorney
General
wSenator Kennedy. When did he report to you?
Mr. Gray. Let me say that the date of this was March 5. Yes; it
came out before that — it came out on Monday — and I think he had
an advance on it, and I think he called me on the weekend, but I am
not sure about when he called me. Senator.
212
Senator Kennedy. Well, you didn't call him? He called 3'ou?
Mr. Gray. That is correct, because I had not seen it.
Senator Kennedy. What did he say to you?
Mr. Gray. He told me there is this article in Time, and he went
on to tell me what it alleges.
Senator Kennedy. Yes.
Mr. Gray. And that is when I told him that he be absolutely cer-
tain that he check and verify the records of the Department of
Justice maintained in the Internal Security Division, and I would be —
actually be — certain that our records were checked.
Senator Kennedy. And you didn't have any — that is the only
contact vou had with the Justice Department?
Mr. Gray. On this?
Senator Kennedy. On this issue.
Mr. Gray. Yes; I haven't talked to Assistant Attorney General
Olson on this at all. I have not discussed this with the Attorney
General at all.
Senator Kennedy. He called you even though it alleges in the
article that it was with Mr. — at some time he called you back — the
Public Information Officer called you back; is that right?
Mr. Gray. Yes, because it was in conjunction A\ith reading a press
release that he was going to put out, and t wanted him to be absolutely
•certain that he had made these checks with the Assistant Attorney
General in charge of the Internal Security Division.
Senator Kennedy. How manv conversations did you have?
Mr. Gray. Two.
Senator Kennedy. Two, and then he called a^ou back and said
there Avere none on the list?
Mr. Gray. That is right, when he was discussing the press release
Tie was going to put out.
Senator Kennedy. So do I gather the extent of your investigation
is a review of >'our own files, and a telephone call to the public informa-
tion officer of the Justice Department, and no one in the White House,
about the allegations and charges by Time magazine?
Mr. Gray. That is correct, because I had no formal complaint
there had been any
Senator Kennedy. I was listening to you earlier when you were
talking about how your Inspection Division follows up every single
■comi)laint that comes on out when it affects the FBI.
Mr. Gray. On one of us.
Senator Kennedy. But when a crime like this, and it is a crime.
Would it not be a crime?
Mr. Gray. If these acts were committed, certainly it is a felony;
no question about it, certainl^^
Senator Kennedy. But the extent of your investigation is, as I
stated, just a review of your own files, the files of the FBI, on what
A\iretaps had been authorized, and since you didn't see any approval
there, and after a routine call from the public information officer from
the Justice Department, you let that drop; is that correct?
Mr. Gray. I would not classify it as just a routine call. He was
quite upset when he read this article to me, and I am sure he w^as
speaking for the Attorney General. I am sure that there had been
discussion between the Attorney General and the Assistant Attorney
213
General in charge of the Internal Security Division where those re-
ports are made. I have to assume this — this is a normal t3'pe of pro-
cedure— and I did what I would do under these circumstances — I
checked our records and indexes.
Senator Kennedy. That is the sole extent of what you did?
Mr. Gray. That is correct, Senator Kennedy, that is exactly what
my testimony is.
Senator Kennedy. In your conversations with the Public Informa-
tion Officer of the Justice Department, did he indicate what the Jus-
tice Department was doing to try to find out whether this was true
or not?
Mr. Gray. Just told me.
Senator Kennedy. What?
Mr. Gray. He told me that the Assistant Attorney General in
charge of the Internal Security Division had checked his records and
indexes, and I told him we ought to be absolutely certain about it.
Senator Kennedy. You didn't think you ought to talk to the As-
sistant Attorney General?
Mr. Gray. No, I didn't.
Senator Kennedy. Why not?
Mr. Gray. Why not? The thought really never entered my mind I
would have to talk to him. I have to check the FBI records, that is
what I have to check.
Senator Kennedy. And you are satisfied with a public information
officer's comments that the Assistant Attorney General in charge of
this unit had nothing on that?
Mr. Gray. This was my contribution to the decisionmaking process
before the Attorney General gave the authorization to send out the
press release. I told him to make absolutely certain, to check those
Department of Justice records because records do exist.
Senator Kennedy. Wliy wouldn't you go to the man in charge
rather than the ])ressman?
Mr. Gray. The pressman reported it to me, and I went to my
people.
Senator Kennedy. Why wouldn't you go to the guy in charge in the-
Justice Department rather than the pressman?
Mr. Gray. I didn't have to go to the pressman; he came to me,.
Senator.
Senator Kennedy. And 3^ou never felt you had to follow up?
Mr. Gray. I testified that I did not feel that.
Senator Kennedy. Even to talk to the Assistant Attorney General
who, if these things were going on, would know the most about it, you
didn' t think 3^ou would have to get in touch with him?
Mr. Gray. I did not; no, sir.
Senator Kennedy. Or do any other kind of investigation?
Mr. Gray. No, sir; since I have been sitting in that chair, I have
been signing all the paperwork that is involved in these national
security taps, and since May
Senator Kennedy. This is a crime?
Mr. Gray. Of course, it is a crime.
Senator Kennedy. And you don't feel you had to do anything more
to review it?
Mr. Gray. No, sir.
214
Senator Kennedy. This is a serious allegation, it charged a crime,
and you didn't feel that you had to do anything more than receive a
call from
Mr. Gray. The proper place to make this charge, you know, is with
the U.S. attorney and not a magazine if there is any verity to it, Sena-
tor.
Senator Kennedy. Well, I don't know whether we would be as far
as we are now in the Watergate if we didn't have the press write about
it; wouldn't you agree with that?
Mr. Gray. I am not
Senator Kennedy. About these charges?
Mr. Gray (continuing) . I am not saying anything against the press
at all.
Senator Kennedy. And allegations?
Mr. Gray. And I further differ with you about your statement,
we would have been exactly where we are with or without the press
because from day 1, as I testified yesterday, I realized that the credi-
bility of the Federal Bureau of Investigation was at stake.
The Chairman. Wait a minute, let him finish his answer.
Mr. Gray. Let me finish my answer.
Senator Kennedy. That is a matter we can disagree on, too.
Mr. Gray. Sure, lots.
Senator Kennedy. But we can't disagree to the extent of the
investigation of a very serious allegation and charges about a serious
crime.
Mr. Gray. That is correct ; I checked the records and indexes of the
FBI.
Senator Kennedy. You checked the records?
Mr. Gray. I said that, Senator, and that is my testimony.
Senator Kennedy. OK.
Mr. Gray. All right.
Senator Kennedy. Let's go a little bit into the question of the
Segretti situation again.
As I understand it, at the hearings yesterda}' there was discussion
about the copies of various FBI materials shown, or made available,
to Mr. Segretti prior to his grand jury appearance in the Watergate
investigation, and, as I recall 3'our testimon}-, I believe you said that
no investigation was conducted of those allegations. That despite the
fact that these materials have been disseminated to the Justice Depart-
ment personnel and to assistant U.S. attorneys out in the field, and,
of course, I imagine presumably to your own agents, your own Bureau,
nothing was done to investigate those allegations or charges other than
a phone call to the White House?
Mr. Gray. Senator, we don't investigate unless we have a violation
of law. Our ground zero is found in our jurisdictional authoritj' , and
there is no violation of law, there is only a breach of trust if this
occurred. I don't know that it occurred, and if it occurred Segretti
was hearing what he had said himself.
Senator Kennedy. Well, I am interested in what steps were taken
to find out or track this down by the FBI?
Mr. Gray. I testified as to the steps.
Senator Kennedy. We are just going to take a little time.
One telephone call?
Mr. Gray. Yes, one telephone call.
215
Senator Kennedy. One telephone call.
Mr. Gray. That is correct.
Senator Kennedy. Did you ever think of talking to Mr. Segretti
■about how he got the information?
Mr. Gray. No, I did not because there was no need to do that. We
talked to Mr. Segretti on June 26 and on June 28, and we also showed
him on June 30 certain pictures trying to get him to identify them, and
he appeared before the grand jury on the 22d day of August, and the
information he gave at the grand jury was relayed on to our agents
by the assistant U.S. attorne}-^ conducting the grand jur3^ We insti-
tuted the investigations that were requested then, and that is the
fact of the matter.
Senator Kennedy. But 3^ou never asked him who gave him the
information?
Mr. Gray. No, I didn't, and no agent of the FBI asked him who
gave it to him because there is no violation of law. Senator. We just
•can't go around doing it.
Senator Kennedy. What do j'^ou do then?
Mr. Gray. We get harpooned when we do.
Senator Kennedy. What do you do when there is unrestricted
information or FBI leaks or whatever?
Mr. Gray. We try in many ways to ascertain how those leaks
■occur. I am not going to discuss publicly. Senator, how we try to do
it.
Senator Kennedy. Well, vou didn't in this case, though, did you,
Mr. Gray?
Mr. Gray. No, I did not. I did not.
Senator Kennedy. All right. How do you know that these leaks
■didn't take place within the FBI?
Mr. Gray. I don't.
Senator Kennedy. But yet you didn't feel that you even ought to
investigate the FBI?
Mr. Gray. No.
Senator Kennedy. What?
Mr. Gray. No; I did not.
•Senator Kennedy. Why not?
Mr. Gray. I had made the decision not to.
Senator Kennedy. W^hat was the basis?
Mr. Gray. There was no basis for it because there was no violation
•of law.
Senator Kennedy. Even if the FBI had leaked the material?
Aren't you interested in that?
Mr. Gray. We are interested in that, Senator.
Senator Kennedy. What did you do about it in this case?
Air. Gray. I did nothing about it.
Senator Kennedy. How do vou know it wasn't an FBI agent?
Mr. Gray. I don't know that it wasn't an FBI agent.
Senator Kennedy. Why didn't you do it?
Mr. Gray. Because I made a decision not to do it because it was
not of that imi)ort to me.
Senator Kennedy. What was not, the leak by the FBI?
Mr. Gray. There was no violation of law. Senator, I have tried to
rim down many, many leaks in the FBI and I don't run down every
one.
216
Senator Kennedy. This isn't a usual one, is it?
Mr. Gray. This is not an}^ more uniisuaL
Senator Kennedy. This is not a usual one?
Mr. Gray. It is not as bad as some of the others.
Senator Kennedy. How do you draw the line then? Which are the
bad ones you investigate and which are the ones that are not so bad
that you don't?
Mr. Gray. Again it is a judgment.
Senator Kennedy. This one didn't fall under the bad ones?
Mr. Gray. I did not investigate it; no.
Senator Kennedy. Not \\dthin the FBI, you did not investigate it?
Mr. Gray. No, didn't investigate it.
Senator Kennedy. You didn't think you ought to investigate and
try to find out whether any of the leaks had taken place in the U.S.
attorney's office?
Mr. Gray. I did not.
Senator Kennedy. And didn't think you ought to investigate it
with regard to the White House, other than a routine call, would j^ou
say?
Mr. Gray. I wouldn't classify it as a routine call.
Senator Kennedy, How would you classify it?
Mr. Gray. I got pretty angry.
Senator Kennedy. One call?
Mr. Gray. It wasn't, "Hello, John, how is it today."
Senator Kennedy. Well, tell us about it.
Mr. Gray. I testified about it yesterday.
Senator Kennedy. Tell us again,
Mr. Gray. I said, "I read the story, is there anj^ substance to it at
all?" And he said, "Absolutel}^ not. I did not even have any of the
reports with me in Miami."
Senator Kennedy. And so what did you sa}^?
Mr. Gray. I said, "All right, that is good enough for me, John"
and hung up.
Senator Kennedy. And that is the extent of it
Mr. Gray. That is the extent. Senator.
Senator Kennedy. You probably remember sometime ago there
was that Look magazine piece about Mayor Alioto, which led to a
libel suit, and we asked Mr. Rehnquist during the course of his testi-
mony— I believe Senator Ervin did — about some of the procedures
that were being followed about the leak to Look magazine, and he
said that the FBI had reported that, and here is what Mr. Rehnquist
said on page 604 of the hearings, part I:
The FBI reported that, after the institution of the libel suit by Mayor Alioto
against Look magazine, it received information that one of its San Francisco
agents had been a source of data for the controversial article. The agent acknowl-
edged that he had been in contact with one of the co-authors of the article and
had on various occasicnas given and confirmed information that ajjpeared in the
article. At no time were official files of the FBI furnished to Look, and the agent's
disclosures and confirmations of information were not made with FBI or other
Department of Justice authorization. Appropriate disciplinary action was taken
against the agent in question and he retired.
It seems the FBI was really willing to go after some apparent
leaks of material in that particular case but not with regard to the
Segretti case or the Watergate or however you want to call it.
Mr. Gray. I would have to differ with you, Senator. The cases
217
can be distinguished because there it was information that an agent
of the Federal Bureau of Investigation had been the source of the
leak. We have no information regarding am*one being the source of
this leak.
Senator Kennedy. Do you have to
Air. Gray. All we have is a statement in a newspaper.
Senator Kennedy. Just a statement in a newspaper?
Mr. Gray. That is right, sir. If I had had information that any
'One individual had been a source of that leak I would have investigated
it.
The Chairman. We will recess now until 2:15.
(Whereupon, at 12:30 p.m., the committee was recessed until
2:15 p.m. of the same day.)
afternoon session
. The Chairman. Let us have order.
Proceed, Senator Kenned}'.
Senator Kennedy. Thank a'ou, Air. Chairman.
We were revie^^"ing this morning, Mr. Gray, the followup actions
on behalf of yourself to the Time magazine allegations of wiretaps on
newsmen, and also the Segretti case, and I would like to move on to
a couple of other areas. But, perhaps, before doing so, I might just
follow u]) on the Time magazine allegation first.
I think earlier, and perhaps it is just a clarification for the record,
I think earlier this morning you indicated that after you had this call
from the Press Officer of the Justice Dei^artment, sometime over
the weekend, last weekend, you checked the indexes of the FBI to
see if there was in fact an}' wu'etapping of the White House. Is that
.correct?
TESTIMONY OF LOUIS PATEICK GRAY III— Resumed
Mr. Gray. That is right.
Senator Kennedy. And I think your testimoiw this morning was
to the effect that you didn't find an}' indication on the index?
Mr. Gray. That is correct, Senator.
Senator Kennedy. Well, did you gather, from any other sources,
information that would have led 3'ou to believe there mav have been?
Mr. Gray. I did not.
Senator Kennedy. You have no basis for the veracitv of that story
then?
Mr. Gray. Not in that particular, no, sir.
Senator Kennedy. Well, what do you mean b}' "in that particular"?
Mr. Gray. Well, the way it is written.
Senator Kennedy. Well
Mr. Gray. We have our records of national securitv surveillances,
3^ou know.
Senator Kennedy. That is correct.
;Mr. Gray. And this is what we checked, and we found no evidence
to thc^fiect that \ve were tapping any newsmen or any White House
personpel.
218
Senator Kennedy. Or court ordered surveillances?
Mr. Gray. Title III, organized crime?
Senator Kennedy. Yes.
Mr. Gray. I checked only the national security record. I didn't
check the Title III Organized Crime because every one of those is
issued by a judge, and I didn't think to check any of those because a
judge issues such an order under title III provisions. I did not check
title III.
Senator Kennedy. I see. But you have no indication then that either,
or you have no reason to believe that either from information that had
been made available to you or made available to top FBI agents that
this- — -
Mr. Gray. Had no reason to believe it.
Senator Kennedy (continuing). That this had taken place?
Mr. Gray. No, sir, I had no reason to believe that.
Senator Kennedy. Why didn't you check under title III?
Mr. Gray. Because every title III surveillance has got to be the
result of an order issued by a judge, and certainly a judge is not going
to be issuing an order in a national security surveillance area, and we
have got to demonstrate probable cause and all the rest of it. It is a
pretty thorough procedure and I didn't even think that title III \\as
involved here. We can check the title III and certainly will do that if
the Senator would wish us to do that.
Senator Kennedy. Would you?
Mr. Gray. I have no objection to that. Yes, sir, I would be happr
to.
(Mr. Gray subsequently submitted the following document for the
record :)
Mr. Gray. The FBI has never had any title III wiretaps on anyone at The
White House or any member of the press.
Senator Kennedy. On the Segretti case, and the leakages of the
FBI file, when you talked with Mr. Dean, I think you indicated the
conversation this morning, and perhaps could I bother you to review
it again with us here as you remember it?
Mr. Gray. Senator, you know I have put that on the record about
three times, and maybe four times. It is on the record and I will stand
by it. It is my testimom- under oath.
Senator Kennedy. I know you are going to stand by it under oath.
Mr. Gray. Sure, and I did. I made the telephone call to John Dean
and I hit the overhead and I was angr}" and I asked him if he had done
this thing and he said, "Absolutelv not. I was in Miami but I didn't
even have the FD-302's with me.''
Senator Kennedy. Sure. Was your question, to the best of your
memory, asking him whether he actually — ^—
Mr. Gray. I read the thing out of a newspaper to him, Senator, and
I said, "Did you do this?"
Senator Kennedy. Did you do what?
Mr. Gray. Do this. "Did 3'ou show this information to Segretti as
it is alleged to have occurred?" and he said, "Absolutely not, under no
circumstances. I did not have the FD-302's with me." I would like to
say for the record, too, if I may, that the Federal Bureau of Investiga-
219
tion interviewed Mr. Segretti on the 26th da}' of June, we interviewed
him
The Chairman. Speak a little louder.
Mr. Gray. I am sorry, sir. We interviewed Mr. Segretti on the
26th day of June, 1972, on the 28th day of June, 1972, and also on the
30th day of June, 1972, when we showed him a picture and asked him
to identify that individual. The onl}^ two reports of interviews that
we have from Mr. Segretti are on the 26th and the 28th of June. We
did not interview him two days })rior to August 19.
Senator Kennedy. Well now, he, as I understand, Mr. Dean indi-
cated that he himself did not leak the FBI report?
Mr. Gray. No, we didn't talk in terms of leak. Senator Kennedy.
Senator Kennedy. Well, how did he — I mean I am just trying to
understand a little better whether he said "I didn't show the FBI
report," that still leaves a pretty wide
Mr. Gray. No, he said, "I didn't even have them with me." He
said he did not.
Senator Kennedy. Could he have made some notes before or
copies and brought those with him?
Mr. Gray. I would doubt it very much. Senator Kennedy.
Senator Kennedy. Did you ask him
Mr. Gray. I didn't ask him.
Senator Kennedy. Whether he had passed on even any of the
information
Mr. Gray. No, I did not ask him.
Senator Kennedy (continuing). Anv of the information that was in
if'
Mr. Gray. No, sir; I did not ask him that.
Senator Kennedy. You just asked him whether he had shown the
re])ort to Mr. Segretti?
Mr. Gray. In fact, this was the allegation when I read it, and I
read it to him out of the paper that morning.
Senator Kennedy. Did you ask him whether he had seen Segretti?
Mr. Gray. No, I did not.
Senator Kennedy. Do 3^ou know whether he saw Mr. Segretti?
Mr. Gray. No, I do not, sir.
Senator Kennedy. At one point while you were investigating the
Watergate case, there were allegations in the press that a former Assist-
ant Attorney General, Mr. Mardian, after he left the Justice Depart-
ment and joined the Committee To Reelect the President, either
ordered or was in some way involved in the destruction of relevant
documents at the Committee To Reelect. Could you tell us what
investigation, if an}', the FBI conducted into those allegations?
Mr. Gray. We endeavored to interview Mr. Mardian, and we did
interview him on July 17, 1972, and he claimed the attorney-client
privilege and said no more to us.
Senator Kennedy. He what?
Mr. Gray. He claimed the attorney-client privilege with regard to
his role with the principal, this is what we were interviewing him about.
Senator Kennedy. Well, who was his client?
Mr. Gray. I will have to take a look at the specific inter\-iew sheet.
I will get the interview sheet, the' FD-302, and provide the answer. I
220
.don't remember. I think he claimed that he had advised Mr. Stans and
Mr. Mitchell.
Senator Kennedy. So he didn't respond any further?
Mr. Gray. That is my recollection, Senator, but I want to check the
actual interview sheet.
Senator Kennedy. But you accepted his claim of lawyer-client
relationship?
Mr. Gray. Senator, 3'ou know we have a point beyond which we
cannot go.
Senator Kennedy. I am just asking you did you accept it?
Mr. Gray. We tried to get whatever information we could from him.
Senator Kennedy. And he said that it was a lawyer-client relation-
ship?
Mr. Gray. This is my best recollection.
wSenator Kennedy. And you accepted that?
Mr. Gray. He was interviewed on July 17, 1972, at which time he
stated he would furnish no information relative to this matter. He
invoked an attornej'-client relationship with respect to Maiuice Stans,
George Gordon Liddv, and Hugh Sloan, stating he had counseled each
one of those individuals and that is what our FD-302 would show.
Senator Kennedy. He had counseled which individuals?
Mr. Gray. Those three individuals, the ones I read: Stans, Liddy,
Sloan.
Senator Kennedy. Is his position that he had counseled them before
the destruction?
Mr. Gray. That is what — no, I am not going to get into the destruc-
tion aspect. I am not looking at the 302. His position as reflected there
was he had counseled them.
wSenator Kennedy. For any period of time, or for how long a period?
Mr. Gray. It doesn't say in that statement.
Senator Kennedy. Did you ask him?
Mr. Gray. I don't know. Senator. I will have to look at the 302.
(Mr. Gray subsequently submitted the following document for the
record :)
Mr. Gray. After a review of the record, Senator Kennedy, I find that Mr.
Mardian advised our Agents that he had, in the capacity of ari attorney rather
than as an employer, spoken to Mr. Liddy, Mr. Stans and Mr. Sloan, and as such,
he could not divulge either the nature or the substance of his conversations with
those men. It is my understanding that the attorney-client privilege which he was
invoking is a continuing one and exists imtil revoked by the client. Our Agents did
not ask Mr. Mardian how long a period of time this privilege would be claimed.
Senator Kennedy. Who else did 3^ou interview about those alleged
destructions of the files?
Mr. Gray. We interviewed quite a few people. Once again, I will
have to go to the 302's to find which of them were asked specific
questions regarding any destruction of files.
(Mr. Gray subsequently submitted the following document for the
record :)
Mr. Gray. After checking, I find that there are two situations in which records
at the Committee to Reelect the President were allegedly destroyed. The first of
these relates to financial records of contribiitions before April 7, 1972, when the
new Disclosure Act took effect. The second involved alleged destruction of records
at the Committee offices after the arrests of the five men at the Democratic Head-
quarters on June 17, 1972. Our Agents contacted a number of people at the
Committee concerning these points and during the Federal grand jury inquiry a
221
number of people were also questioned concerning the records destruction. Those
questioned included Jeb Magruder, Herbert Porter, Maurice Stans, Hugh Sloan,
Paul Barrick, Lee Nunn, Sally Harmony, Judith Hoback, Robert Odle, Robert
Houston, Sylvia Panarites, Millicent Gleason and Martha Duncan.
Senator Kennedy. Do you remember whether you talked to Fred-
erick LaRue? His name was mentioned in this.
Mr. Gray. I believe Mr. LaRue was interviewed.
Senator Kennedy. Could you tell us when?
Mr. Gray. Yes, he was interviev.ed on July 18, 1972, and again in
more detail on July 21, 1972.
Senator Kennedy. Did you ask him about the destruction of files?
]NIr. Gray. I am goino; to have to answer that one specifically; I
will have to go to the 302 to see the detailed report of interview,
Senator, and I will do that.
The Chairman. Of course, that is not the question. Did you ask
him? Did you interview him?
Mr. Gray. No, I cUdn't interview him; the Federal Bureau of
Investigation — a special agent of the Federal Bureau of Investigation
interviewed him.
Senator Kennedy. What can you tell us, then — I would be inter-
ested if you could tell us about the results of that interview — but
what can you tell us about the interview into the allegations of the
destruction of files by Mr. Mardian; v.diat can you tell us?
Mr. Gray. I am going to provide it for the record, Senator, be-
cause there are so many persons we interviewed, with so many leads
and so many witnesses, that I can't possibly make any pretense that
I can remember exactly who, you know. I could try to recollect, but
that is dangerous. I would much rather be sure and be specific and
be precise.
(Mr. Gray subsequently submitted the following document for the
record :)
Mr. Gray. I find, Senator Kennedy, upon checking the records, that Mr.
INIardian, who vvas Special Assistant to the Campaign Manager for the Committee
to Reelect the President, was interviewed on July 17, 1972, at the request of
Assistant U.S. Attorney Earl Silbert regarding his knowledge of the activities of
Sloan and Liddy while they worked for the Committee to Reelect the President.
There was no allegation that Mr. Mardian had any information regarding the
destruction of records. In addition, Mr. Mitchell advised us on July 5, 1972,
that Mr. Mardian was with him at a political meeting in California from June 16
through June 20, 1972. Liddy 's alleged destruction of records took place on June
17, 1972. In addition, Mr. LaRue was not interviewed regarding destruction of
records as there was no allegation that he had any such information. Mr. LaRue
was interviewed on two occasions, July 18 and 21, 1972, as I mentioned above
but these interviews dealt with matters other than the destruction of records.
Senator Kennedy. That is the way it should be, obviously. Can
you tell us whether there actually was, as a result of the investigation.,
destruction of those files?
Mr. Gray. Can I tell you that there was destruction of those files?
We had allegations to that effect, and statements to that effect made
to us by individuals that we mterviewed; yes, sir, I think I can say
that; yes, indeed.
Senator Kennedy. Would that be a crime?
Mr. Gray. I don't know.
Senator Kennedy. What does your legal counsel say, if this was
Mr. Gray. I didn't specifically ask that question of him, because
all during the conduct of this investigation we were working hand in
91-3.31—73 15
222
glove \\dtli the assistant U.S. attorney. If at any time an assistant
U.S. attorney thought we were uncovering evidence of a crime, he
Avould have pointed us in that direction rtsgardless of what I wanted to
do, Senator.
Senator Kennedy. Wliat did you want to do?
Mr. Gray. I said regardless of what I wanted to do.
Senator Kennedy. Did he ever indicate to you that he thought
that there was a possible crime?
Mr. Gray. No, I don't recall that specifically; and what I wanted
to do from day 1, as we say in the FBI, was to give it a full court press
with no holds barred and investigate to the hilt, and I believe we did.
Senator Kennedy. Well now, but you had reason to believe that
this could have been a crime, may have been a crime?
Mr. Gray. No, I don't; no, I don't. I am not testifying to that
effect at all. Senator. I want to look at the facts and the circumstances,
and I want to look at the possible statutes that are applicable before I
give A^ou an answer to that question, sir.
(Mr. Gray subsec^uently submitted the following document for the
record :)
Mr. Gray. I have had this matter researched, Senator Kennedy, and I have
been informed that if destruction of files is brought about by briber}-, misrepre-
sentation, intimidation, or force or threats thereof it could constitute a violation
of Title IS, U.S. Code, Section 1.510 (Obstruction of Criminal Investigations).
However, in the absence of the elements listed (V:)ribery, etc.) the act of destruc-
tion by an individual having lawful possession would not appear to be a crime
unless the files were specifically protected by a statute or the destruction was
the last step in a continuing criminal conspiracy (Title 18, U.S. Code, Section
371) to violate other substantive Federal laws and to avoid detection.
An example of statutory record-keeping requirements is foimd in the Federal
Election Campaign Act of 1971, Title III of which requires keeping detailed and
exact records of all contributors, the name and address of contributors, and all
expenditures made by political committees covered by the statute. It should be
noted that this statute became effective on April 7, 1972.
Senator Kennedy. But at least you did haA^e reports from your
inA^estigators that such destruction had taken place based upon their
inA^estigation?
Mr. Graa". I read in some reports, Senator, I belie A^e it was one
individual or ma3^be two who stated to us that there had been a
destruction of files A\ithin the Committee To Reelect the President,
yes, sir, but I can't recall specifically which person. I read that in a
rather large stream of 302's and telet3^pes that came across ni}^
desk.
(Mr. Gra}^ siibsec[uentlA' submitted the following document for the
record :)
Mr. Gray. After checking, I find that there are two situations in which records
at the Committee to Reelect the President were allegedly destroyed. The first of
these relates to financial records of contributions before April 7, 1972, when the
new Disclosure Act took effect. The second involved alleged destruction of records
at the Committee offices after the arrests of the five men at the Democratic
Headquarters on June 17, 1972.
Senator Kennedy. And did they allege that Mardian had been
invoh^ed?
Mr. Graa'. No, sir; I recall no such allegation as that. But I want
to check the record and giA'e a'ou an accurate report before I state
under oath that he Avas not.
223
Senator Kennedy. Or Mr. LaRue?
Mr. Gray. No, sir; I don't believe any mention was ever made of
Mr. LaRue in this context, but I will check the 302's and verify it.
(Mr. Gray subsequently submitted the following document for the
record :)
Mr. Gray. As 1 indicated previously, there was no allegation that Mr. Mardian
had anj^ information regarding destruction of records at the Committee to Reelect
the President. With respect to Mr. LaR.ue, we interviewed him on Jul.v 18, and
21, 1972, upon the request of Mr. Silbert, to determine his knowledge of the
activities of Sloan and Liddy. There was no allegation that Mr. LaRue par-
ticipated in or had any information concerning destruction of records and, in
fact, when we interviewed Mr. Mitchell, he stated that Mr. LaRue as well as
several other officials of the Committee were in California over the weekend of
June 17 when records at the Committee were allegedly destroyed by Mr. Liddj'.
Senator Kennedy. Wliere does that lie now, that investigation, the
investigation of destruction of the records?
Mr. Gray. The Watergate investigation itself?
Senator Kennedy. No; just the destruction of the records.
Mr. Gray. The destruction is a part of the total investigation, and
I would have to ask the Assistant U.S. Attorney and the Department
of Justice where we are on that right now because we have not been
pushed in that area.
Senator Kennedy. You have not been what?
Mr. Gray. Pardon, sir?
Senator Kennedy. You have not been what in that area?
Mr. Gray. Pushed, directed, guided in that area, to the best of m}'
knowledge at this moment — but I will ascertain the facts.
Senator Kennedy. Could this not be considered as an obstruction
of justice if the records were actually destroyed?
Air. Gray. I doubt it because I think what you are talking about — if
you are talking about the same records that I have a recollection
of — 3^ou are talking about those that were compiled prior to April 7,
and I know •
Senator Kennedy. How do you know?
Mr. Gray. Wliat?
Senator Kennedy. How do you know?
Mr. Gray. I don't know.
Senator Kennedy. Why are you assuming that?
Mr. Gray. Well, I assume that these are the ones you are talking
about, because I know as a fact that after April 7, new records were
started. I specificalh^ asked that question myself and I do recall that,
and I can testif}" under oath to that effect.
Senator Kennedy. Was that the question that was asked Mr. Mar-
dian, whether it was just records before the April period?
Mr. Gray. That is mj recollection, that we were dealing with
records prior, of contributions and disbursements prior to April 7.
(Mr. Gray subsequently submitted the follo^\^ng document for the
record :)
Mr. Gray. Senator, at this time I would like to state that Mr. Mardian was
not questioned concerning what records existed prior to April, 1972, nor was he
questioned concerning any destruction of records. The investigation did not de-
velop any allegation that Mr. Mardian had been involved in the destruction of
records.
224
Senator Kennedy. Well, I am not sure that that was particularly
the newspaper allegation, was it?
Mr. Gray. I don't know the newspaper allegations.
Senator Kennedy. Why did you just ask them then
Mr. Gray. Why did I do what?
Senator Kennedy. If you ^^dll wait for the question. What specific
questions did you ask him besides which records had been destroyed
before April? Did you ask liim whether any records that came after
April had been destroyed, or any other records that dealt mth the
alleged Watergate incident?
Mr. Gray. No, I think my notations were to the effect of what
records were maintained, what records are our interviewees telling
us were destroyed, and what is the present condition of records at the
Committee to Re-Elect the President. That is ni}- best recollection of
the questions that I asked at the time, Senator.
Senator Kennedy. Who destroj^ed them, if they were destroyed?
]Mr. Gray. Oh, yes, we would want to know that.
Senator Kennedy. One other area. Mr. Segretti. As I understand,
Mr. Gray, Donald Segretti was interviewed during your investigation;
is that correct? You have indicated that, given us the dates?
Mr. Gray. Yes, I gave j^ou the dates — the 26th of June, 1972,
the 28th of June, 1972, and also we saw him on the 30th of June in
an effort to get liim to identify pictures. Senator.
Senator Kennedy. Could you tell us vvh}^ he was investigated?
Mr, Gray. Why he was investigated?
Senator Kennedy. Yes.
Mr. Gray. He turned up, his telephone num.ber turned up, as I
recollect. He was one of those telephone numbers that we ran down.
This was my recollection. I would like to check my records to make
sure I am correct, though.
(Mr. Gray subsequently submitted the following document for the
record :)
i\Ir. Gray. After reviewing the records, Senator, I find that my recollection
was correct and that we conducted investigation concerning Mr. Segretti because
a review of the telephone toll records of Mr. Hunt's calls had showed numerous
phone calls between Hunt and Segretti.
Senator Kennedy. My recollection
Mr. Gray. It is.
Senator Kennedy. Yes.
Mr. Gray. Then we are in agreement.
Senator Kennedy. Do you remember what he — there was some
inter\dcw with him then, on June 26, and on the 28th; is that correct?
]Mr. Gray. Yes, sir.
Senator Kennedy. And do you know whether he indicated that
Hunt had asked him — what Mr. Hunt had asked him to do?
Mr. Gray. No. There is a little note here that I made, that he
refused to give us any names, dates, or places at all. He was not too
cooperative and helpful.
Senator Kennedy. He was uncooperative?
Mr. Gray. That is right, in the sense of giving us names, dates, and
places. He talked to us once we contacted him, but he did not give
us names, dates, and places. But this later, we are advised, came out
at the Federal Grand Jury. I would hke not to get into that.
225
Senator Kennedy. Wliat other investigations were conducted on
T».'Ir. Segretti, other than the two inter\iews on the 26th and 28th,
do YOU know?
Mr. Gray. I am not really sure I understand that question. We
were not investigating him for anything other than his involvement,
if any, in this I()C situation at the Democratic national headquarters.
Senator Kennedy. Were his telephone toll cards obtained?
Mr. Gray. I believe that they were; yes, sir.
Senator Kennedy. Why were his toll cards obtained?
Mr. Gray. I think we probably wanted to see to whom Segretti
could lead us. We obtained an awful lot of toll calls. As I recall, there
were 2,200 of them, not from Segretti, though, but from all the people
involved in this investigation as interviewees or as principals.
Senator Kennedy. Who did they lead to?
Mr. Gray. I don't recall with that specificit}^. Senator.
Senator Kennedy. Would there be any names on there — would you
remember them?
Mr. Gray. No; I wouldn't. I would have to provide that for the
record for you. Senator. I just don't remember that.
(Mr. Gray subsequently submitted the following document for the
record :)
IMr. Gray. Our records show that during the period of time we felt was pertinent
and checked, from about August, 1971 to June, 1972, there were about 700 calls
charged to Mr. Segretti. The investigating Agents screened these calls to try
to pinpoint those which M^ould appear to involve the Watergate subjects (Hunt,
Liddy, McCord, Barker, Martinez, Fiorini and Gonzalez). We also looked for
calls to the Committee to Reelect the President, Committee to Reelect the
President people, the White House, White House people, or calls which might
show Segretti was in contact with Hunt or Liddy during their travels. The greater
majority of these calls did not appear to relate to the people involved in the
Watergate incident. We did learn that Mr. Segretti was in touch with the published
telephone number of the White House on several occasions; with hotels in Miami,
Washington, D.C., and Chicago; with Mr. Dwight Chapin's residence; and with
Mr. Hunt, both at his office and at his residence.
Senator Kennedy. Were his bank records obtained, too?
Mr. Gray. I think we did but I am not sure on that. May I provide
that for you, too. I know that as a result of — I can tell you what we
did as a result of the Federal Grand Jur}^, but I am getting m3^self
into difficulty here.
(Mr. Gray subsequently submitted the following docimient for
the record :)
Mr. Gray. The records show that we did examine Mr. Segretti's bank accounts
and access to the accounts was gained through issuance of a Federal grand jury
subpoena.
Senator Kennedy. Now, as I understand, both the telephone records
and the bank records were obtained, is that correct?
Mr. Gray. I believe vve did. I believe we did, because I didn't put
any restrictions on them. The investigators did what was normal and
standard, and I am sure I am right but I want to be specific and precise
on it.
Senator Kennedy. Now, was Mr. Kalmbach interviewed?
Mr. Gray. Yes, sir, he was.
Senator Kennedy. Why was he interviewed?
Mr. Gray. Well, that goes to the Federal Grand Jury,
226
Senator Kennedy. I am sorry
Mr. Gray. Well, we had information — you know, I am going to
get nwself into trouble with Judge Sirica because I know why we
went to Mr. ICalmbach and I know where the information came from
but I have got a problem here with it.
Senator Kennedy. Other than the Grand Jurj^, can 3'ou tell us
what questions he was asked b}" the investigators?
Mr. Gray. Mr. Kalmbach?
Senator Kennedy. Yes.
Mr. Gray. No, I would have to go to the 302's and give j^ou that
specifically, which I am perfectly willing to do, and tell you exactly
what he told us and how he told us, just what the text is there in that
302.
(Mr. Gra}^ subsequently^ submitted the following document for the
record :)
Mr. Gray. After checking the records, I have found that Mr. Kalmbach was
interviewed on September 4, 1972, at Los Angeles. This interview was conducted
at the request of Assistant U.S. Attorney Silbert, who directed the grand jury
inquiry. Mr. Silbert wanted us to find from Mr. Kalmbach details concerning
]:)ayments of money to Segretti such as how much was paid, where the money came
from and whether rejjorts were made by Segretti. Mr. Kalmlmch said that in
either August or September, 1971, he was contacted by Mr. D wight Chapin and
was informed that Captain Donald Henry Segretti was about to get out of the
military service and that he may be of service to the Republican Party. Mr. Chapin
asked Mr. Kalmbach to contact Segretti in this regard but Mr. Kalmbach said he
was not exactly sure what service Chaj^in had in mind other than he believed he
would be of service to the Republican Party. He said he did not press Chapin in
this regard. He did contact Segretti and agreed that Segretti would be i)aid
$16,000 per year plus expenses and he paid Segretti somewhere between $30,000
and $40,000' between September 1, 1971, and March 15, 1972. Mr. Kalmbach
said lie maintained no records of expenditures to Segretti and said he never received
any written or verbal i*eports from Segretti. He said he was very rarely contacted
by Segretti and believes he only met him personally on two occasions, the dates
of which he could not recall. He said he merely acted as a disbursing agent for
Segretti's salary and expenses and he has no idea how Segretti received his in-
structions or whom he reported to.
Mr. Kalmbach was asked whether he had to account to anyone for his expendi-
tuies to Segretti and said he did not have to account to an.yone. He was asked
how much was in the funds he used to pay Segretti and he did not answer this
question. He said on one occasion he gave Segretti $5,000 and subseqiientl.y
$20,000 to cover Segretti's expenses. He said he had no knowledge of what SegTctti
was doing to justify these expenses or to earn his salary. He said the money he
used to pay Segretti came out of campaign funds that were obtained from con-
tributors prior to April 7, 1972. He said although he usually paid Segretti in cash,
an occasional check may have been written. He stated he did not have any
information pertaining to the burglary of the Democratic Headquarters and could
fiu'nish no information concerning that matter. He said he does not know Hunt
but had learned of his involvement in this matter from the media. He stated he
was accjuainted with Liddy but had only limited contact with Liddy. Such contacts
took place in connection with Liddy's work as legal counsel to the Finance Com-
mittee to Reelect the President. He was asked if he had anj' knowledge of McCord
and he stated he never had any dealings with McCord and only met him on one
occasion at the Finance Committee to Reelect the President in Washington, D.C.,
at wliich time McCord identified himself to Kalmbach as the security officer for
the Committee.
Senator Kennedy. And Mr. Chapin, did 3^ou interview Mm?
Mr. Gray. Yes, we did. Senator.
Senator Kennedy. Wh}' did you interview Mr. Chapin?
Mr. Gray. That also stems from the Grand Jur}^, and there is a
possibility here, which is subject to my verification, that tlie}^ were
on the toll call records, and that Donald Segretti had telephoned
227
these men. There is that possibiHty but I can't remember ^\^th enough
certainty to state it.
wSenator Kennedy. Did you intervie^Y everyone that Mr. Segretti
had called?
Mr. Gray. The Federal Bureau of Investigation?
Senator Kennedy. Yes.
Mr. Gray. No, sir; there ^vould have been a selective screening at
the case agent and field supervisor}' level and they \vould have done
that themselves. I AYOuld not have interfered, though. I \vould not
have said, "Don't do this or don't do that." I turned them loose.
Senator Kennedy. What is the basis of the screening?
ISIr. Gray. It is basically to save manpoAver and get your most
probable parties first.
Senator Kennedy. IIo^v do 3'ou decide which ones vou are going to
get?
Mr. Gray. The case agents from the knowledge of the case and the
total buildup of the statement pattern as it is being developed,
discuss this among themselves and their supervisors and they begin
to zero in. In these investigations one thing leads to another. It is
that type of situation.
Senator Kennedy. Why would Kalmbach and Chapin be on the
list of the interviewed and some others not be?
Mr. Gray. I think it was a natural and probable consequence b}^
that time.
Senator Kennedy. Why?
Mr. Gray. Because it was certainly an obvious conclusion to be
drawn by anybody that these would be people who should be inter-
viewed, because of some of the allegations that were made once
again in the Federal Grand Jury.
Senator Kennedy. Did you ever talk to Chapin's boss?
Mr. Gray. Who is that, sir?
Senator Kennedy. Mr. Haldeman.
Mr. Gray. Mr. Haldeman, no, sir, we did not.
Senator Kennedy. Did anybody that you know of in the FBI talk
to him?
Mr. Gray. No, sir, I know of no one from the FBI who talked to
Mr. Haldeman. I know of no one in the FBI who sent out a lead to
talk to Mr. Haldeman and I know of no one in the FBI who recom-
mended that we talk to Mr. Haldeman, and when I asked these very
same questions in our skull sessions
Senator Kennedy. You asked the same questions?
Mr. Gray (continuing). I asked those very same questions in our
skull sessions.
Senator Kennedy. Why did you ask them?
Mr. Gray. Why did I ask them? Because once again I wanted to
leave no stone unturned.
Senator Kennedy. You think if they asked Mr. Chapin's boss that
some stone might have been turned?
Mr. Gray. I doubt it very much because we have no indication
in the total statement pattern, the total evidentiary pattern of devel-
opment of this investigation to indicate that he was involved. We did
interview Air. Ehrlichman, so the natural conclusion has got to be
drawn, Senator, that if we had thought, if any of my investigators
228
had thought that Mr. Haldeman should hare been interviewed such
a recommendation would have been made, such a lead would have been
carried through.
Senator Kennedy. But the thought came through your mind
though, did it not, about interviewing Mr. Chapin's boss about what
acti\^ties Mr. Chapin
Mr. Gray. This is when we were preparing for this confirmation.
Senator Kennedy (continuing). It is not an unusual thought to
have, is it?
Mr. Gray. No, it isn't an unusual thing under the circumstances.
I asked it and I checked it out when we were going through our skull
sessions in preparing for these confirmation hearings.
Senator Kennedy. It might have been?
Mr. Gray. I did not ask it during the conduct of the investigation,
however.
Senator Kennedy. But you did ask it during the skull sessions?
Mr. Gray. Sure because I knew this would be a question that
would be asked me and one I would have to answer.
Senator Kennedy. Wliat would have been the type of thing you
might have been looldng for with Mr. Haldeman, what Mr. Chapin's
duties were?
Mr. Gray. No.
Senator Kennedy. Wliat sort of thing?
Mr. Gray. Any participation, guidance, dhection, involvement in
the IOC. That was the criminal matter that we had under investiga-
tion.
Senator Kennedy. Limited only to that?
Mr. Gray. Sir?
Senator Kennedy. Limited onty to that?
Mr. Gray. Yes, sh. That is correct.
Senator Kennedy. Did Haldeman have access to the FBI reports?
Air. Gray. I cannot answer that question because I do not know
the answer.
Senator Kennedy. Well, to your own knov,dedge, you don't know
whether he had, he ever had access to it?
Mr. Gray. No, I have to testify that I do not know.
Senator Kennedy. Could you find that out, would there be a way
of your finding that out?
Mr. Gray. Oh, yes, I think there probabl}^ would be a way of
fuiding that out. I would ask him.
Senator Kennedy. Would you do that?
Mr. Gray. Yes, sir, I would.
(Mr. Gra}^ subsequently submitted the following document for the
record :)
Mr. Gray. I contacted Mr. Haldeman on Friday, March 2, 1973, and IMr.
Haldeman stated he did not have access to the FBI reports in this matter.
Senator Kennedy. I have some other areas; what waj would vou
like to proceed. Air. Chairman?
I have some other areas. Do you want me to proceed now? I would
like to, if I could. Unless other members of the committee are inter-
ested in askhig some questions now, what I would like to do is to talk
a httle bit about procedures within the FBI. Air. Gray has indicated
229
an interest in opening up and talking a bit about that. I have some
questions in those areas that I will be glad to start in on.
The Chairman. Senator Mathias wanted to ask some questions.
Senator Kennedy. All right.
The Chairman. About how long have you got?
Senator Matkias. Air. Chairman, I wouldn't take more than 10
minutes, 15 at the outside.
The Chair?,ian. After you conclude suppose we go over to Tuesday
morning.
Senator Kennedy. After Senator Mathias?
Senator Tunney. What time in the morning?
The Chairiman. 10:30 Tuesday morning.
Senator Bayh. Mr. Chau-man, I am not going to be here Tuesday
morning and I have a few questions I would like to ask the witness if
it would be possible.
The Chairman. How much time?
Senator Bayh. I don't thmk it would take more than couple of
minutes.
The Chairman. I am going to be on a j^lane in a few minutes.
[Laughter.]
Senator Bayh. I will try my best.
The Chairman. Call A'our campaign off and attend to your job.
[Laughter.]
Senator Bayh. I would be glad to tr}' my best to carry the mantle
of the temporary chairmanship in extenso if the Chair will permit me,
and I promise not to
[Laughter.]
Senaitor Tunney. Mr. Chairman, I also am not going to be here on
Tuesday, and I also have abovit 15 minutes of additional cpiestions
that I would like to ask.
Senator Kennedy. Mr. Chairman, would it make sense to have,
after we have all had an opportunity- to examine the material, have
INIr. Gray come back up? I am sure I have other
The Chairman. That is something that the committee is going to
have to determine. The Chairman can't determine it.
Senator Kennedy. Won't Mr. Gray be coming back after we have
had a chance to examine the material anyway, if any member of the
committee would want to question him?
The Chairman. I would think that would be what the committee
would decide.
Senator Kennedy. ALaybe that would be better.
Senator Mathias. Mr. Chairman, could I have the floor?
The Chairman. Proceed.
Senator Mathias. Mr. Gray, as you know, there has been consider-
able interest in the National Crime Information Center, its size, and
its utility as a crime fighting, law enforcement service and device.
The Chairman. Suppose we adjourn at 4:15 until 10:30 Tuesday
morning. That gives Senator Bayh 15 minutes.
Senator Tunney. Where does that leave me.
The Chairman. It leaves you out. (Laughter.)
I am not going to stay around here all afternoon. Proceed.
Senator Mathias. As you know, there has been considerable in-
terest in the National Crime Information Center, its size, its utility
as a crime-fighting and law-enforcement device, its effect on personal
rights to privacy, and all of this area.
230
Despite the NCIC's national importance and the nationwide in-
terest in its potential, there is, in fact, very Httle, if any, legislative
base for it. We, in Congress, never really have set statutory standards
for its development and for its operation, for the philosophy with
which its activities are conducted, and the statutory base that does
exist is a precomputer concept.
Now, what I am wondering is whether you would be willing to co-
operate with the Congress in a serious and announced effort to provide
a statutory basis for the NCIC, and to the related facilities.
What I'have in mind is a basis that will serve as a guide, and as a
foundation upon which we could build the kind of broad public
confidence that this part of your activities should have.
Mr. Gray. Senator Mathias, I, too, share the feehng that all of
the many pluses, the many positive aspects of NCIC have not been
sufficiently impressed upon the mind of the people in the United
States. This may be our fault, and again it may not be our fault, but
to answer your question specifically: Yes; I would be willing — more
than willing — to work with this committee, or any subcommittee, or
any other appropriate committee of the U.S. Senate, as I am working
now with Congressman Don Edwards, House Judiciary Subcommittee
No. 4, in this very area.
Senator Mathias. Well, I think this is important because here
we have a great data bank of information which is not just of theo-
retical interest but of enormous personal interest to practically every
American, and we have no statutory guidelines as to who holds the
key, or under what circumstance he delivers it up, and to whom the
key should rightfully be entrusted. All of that is just really a pretty
vague and misty area.
I was pleased to note that in appendix A, which you submitted to
the committee in your opening statement, you listed as one of the
13 avenues of inquiry instituted during the time 3^ou were the Acting
Director, the avenue entitled Bureau Files, and you suggest certain
questions which 3^ou asked with regard to the National Crime Infor-
mation Center and the Identification Division. I am interested in
the NCIC, because I think it can be of great value to the country,
but I am interested in it also because I think it offers the potential
for very serious abuse, very easy abuse.
The questions that 3^ou asked in the fifth avenue of inquiry were
these: Are we taking accurate security precautions to prevent leaks
to unauthorized persons? Are State safeguards adequate to insure
the confidentiality of National Crime Information Center infor-
mation? This, of course, relating to the ability of various State and
local police authorities to get printouts from the system. Are classi-
fication procedures completely responsive to our needs and the needs
of other Federal agencies? Is there a need for certain of our files of
a very sensitive nature including greater security than the criminal
files?
What sort of investigation, can you tell the committee, did you
undertake in order to get the answers to these questions?
Mr. Gray. Well, initially. Senator, what was done in the Federal
Bureau of Investigation was to prepare position and study papers
on each of these areas, and these were given to me and all of the top
231
executives of the FBI who constitute the executive conference. We
had an opportunity to study them, and then we went down for 2 days
at the National Academy at Quantico. We had a very thorough dis-
cussion of each study paper and, as I said in my opening statement,
this formed the first of a long series of avenues of inquiry. We have
progressed much beyond what I have here in exhibit D to my state-
ment. We have been ha\"ing continuous meetings on this, and I think
that really we have once again not gotten across to the public what
we are doing in the National Crime Information Center and, indeed,
what the National Crime Information Center really is — the fact that
we have the ad^'isory policy board, and how that advisory policy
board is selected. We have an awful lot to tell about NCIC, and I
had a lot of questions on it earlier. I actually have been over there,
watched it operate, know the monitoring, checked out the safeguards.
We have the codings, and we have the terminals and controls, and that
sort of thing.
Senator Mathias. Well, could you answer your o\\^l fii-st question
here?
Mr. Gray. Yes.
Senator Mathias. Are we taking adequate securitj^ precautions
to prevent leaks?
Mr. Gray. Yes, sir; I can answer that question. But I will also have
to say that the experts in computer systems technology ^^ill say to
you that a computer system that cannot be penetrated is not yet
designed. So there is always that risk. We have tried, working with
the computer companies, to build in all the safeguards that we can
conceivably build in, and to guard carefully the terminals, to guard
carefully our codes. We have a constant problem, as you probably
know, and it is a real problem with the States, because we require
dedication either of the computer, or that the computer be under the
control of a law enforcement agency. We are contractually in agree-
ment with these law enforcement agencies so that we do have some
sanctions, and if we find that abuse is occurring, we can terminate
their participation in the NCIC. That is the only sanction we have
right now. Those are contractual — those are signed contracts.
Senator Mathias. So that really your answer to your question —
your second question — is that you are not totally happy A\-ith State
safeguards?
Mr. Gray. Well, I say that we have some problems because there
are States, and there are big municipalities, who don't want to come to
agreement with us and, as a result, are not m the system. We won't
let them in, and this is a problem.
The Governors have this problem, and the mayors and the law
enforcement officials of some of the bigger cities. An example is
Cincinnati. I don't know whether we have settled it with Cinciimati
or not, but apparently not.
Senator Mathias. But lack of safeguards in major metropolitan
areas that might really need this kind of device prevents them from
getting it?
Mr. Gray. Yes; it could be a problem, yes, sir. The fact they
will not dedicate — they have either to dedicate the computer or to
give control to a law enforcement agency. The real danger here, you
know, is the co-minglmg of all this information that is programmed in a
232
State or municipal computer system. You have all kinds of infornia-
tion there which we don't want co-mingled with the criminal justice
system.
Senator Mathias. So if you and I hold credit cards from the sam.e
company, and I get your bill or you get mine, this same problem
might occur?
Mr. Gray. That could happen, yes, sir, but that would be remote.
Senator Mathias. What about classification procedures; do you
find them responsive?
Mr. Gray. So far, workhig with our advisory committee, we are
satisfied with those.
Senator Mathias. Wliat about a classification of files of a sensitive
nature giving them greater security treatment than criminal files?
Mr. Gray. Are we talking of these last two questions directed right
to our files? We are not in the NCIC area now and that is what I
had reference to. Withm the Federal Bureau of Investigation we
chopped heavily, that is, in the number of ofiicials of the Bureau who
coul'd classify. We cut them down heavily, far more actually than I
wanted to cut them down, under the pressure of the Commission
established by the President to oversee the Federal Government. I
resisted the cuts and we had to take them bitterly. They have been
cut and the classification authority is much more narrow now.
The other one, yes, there is a need for certain of our files of a very
sensitive nature to be given greater security than the criminal files,
and indeed they are, and indeed they are separate and distinct from
them. One of the things that concerns me ver^" greatly is the handling
of those files on a day-to-day basis, the accountability of those files,
and the dissemination of information. I have done everything that I
can do, and will continue to do, to tighten up, and the people in the
FBI know I am not satisfied yet.
Senator Mathias. Woukl j^ou illustrate to the committee the kind
of files that you are referring to?
Mr. Gray. The highest order of national security.
Senator Mathias. I have prepared a number of written questions.
I am not going to take your time or the committee's time to propound
them to you now. I will submit them for the record and give you a
cop3^ of them. I would say that I recognize the time pressures that
are on you and the voluminous information that is requested of you
by the committee up to this point. Some of these questions will
require mereij^ factual answers but others are really looking for your
personal views. So, notwithstanding the time pressure, it would be
very helpful if you can respond to these questions because I think to
the extent that it involves j^our evaluation, your personal evaluation,
it can be helpful to the Committee and to the Senate, and I think
maybe helpful to 3'ou in getting the approval of the Senate.
yir. Gray. I am pleased to do that, Senator. The onh' thmg I would
like to invite your attention to is that yesterday the committee wanted
us to key responses to the pages of the transcript, and I said I would
provide answers in 48 hours. That was modified to provide answers
48 hours after receipt of the transcript.
233
Senator Mathias. Well, in order to facilitate that process T will ask
unanimous consent now that the questions be included at thi-: point
in the record
Mr. Gray. All right, that will help.
Senator Mathias (continuing;). As if propounded.
Senator Kennedy (presiding:). It is so ordered.
(The document referred to follows :)
Questions by Senator ]\Iathias Submitted in Writing to L. Patrick Gray
AND Inserted in the Record of the Hearings on Mr. Gray's Nomination
OF the Senate Judiciary Committee
(A) How many individual files are now contained in the NCIC? How many
of these ai-e summaiy files? How many are complete files? How do you distinguish
between the two categories? What would he your personal estimate as to the rate
of growth in the number of files that would be contained in the NCIC over the
next year, five j'ears, ten years?
(BJ How many of the files above are criminal history files of particular individ-
uals? How many of these are summary files? How many are complete files?
What is your personal estimate as to the number of such files the NCIC will
contain or have access to in one year, five years, ten years?
(C) What Federal officials are authorized to have access to these files? For what
purpose may a Federal official attain such access? For how long may he retain
the information he has so acquired? Is the rule governing access available in a
written form? If so, could you provide a complete set of such rules or regulations
to the Committee? What procedures are there for ensuring that the rules governing
access are actually obeyed? In what waj^ if any, have you altered the rules govern-
ing access to the "files contained in the NCIC in your tenure as Acting Director?
Have you instituted anj^ studies to determine if these rules are adequate and are
being obeyed? If so, could you provide the results of these studies to the Com-
mittee? What regulations have been established for dealing with coses of improper
access to these liles? Could you provide the Committee with a cojjy of these
regulations? Have you knowledge of au.y cases of improper access? If so, cotild
you provide us with the pertinent details?
(D) May a Federal official give information obtained from the NCIC to any
officials outside the FBI? If so, to whom? For what purpose? Under whose author-
ity? What safeguards have been established to make sure that the regulations
governing the dissemination of information are obeyed? In what way have you
changed the regulations governing dissemination of information during .vour
tenure as Acting Director? Have you instituted studies to determine if further
changes are advisable? If so, could you provide the Committee with a description
of these studies and the results of these studies? If you have determined that
there have been instances of im]:.roper dissemination of information, could you
supply us with the relevant details, together with a description of the action
taken regarding the individuals involved in such improper conduct?
(E) Do 5-0U demand that states establish a system of safeguards as stringent
as that which you have established? If not, why not? Could you provide a summary
of the safeguards against improper access of dissemination of information con-
tained in the NCIC or related state systems that have been established by each
state that provides or receives information from the NCIC? In your opinion, are
these safeguards entirely adequate? If not, do you believe the Federal govern-
ment should take a more active role to assure that adequate safeguards are
developed and enforced by participating states? If not, why not? Have you ever
provided to the States a model set of regulations to safeguard the NCIC system
from improper access or abuse? If so, could you provide this committee with
these regulations? If not, do you believe that such a model might help to assure
that the NCIC and related state systems would be properly utiUzed?
(F) How much money will it cost to operate the NCIC this year? To operate
related state systems? Approximately how much of the funds for operating re-
lated state systems originate with the Federal government and through which
Federal agency are they channelled to the states? How much money has been
spent to develop the NCIC and related state systems in the past? From what
234
sources did this money originate? What is your best estimate of the amount of
funds necessary to expand the NCIC as projected during the next year, five
years? To expand related state systems as projected during this same period?
To operate the system as so expanded during each of these years? Would you
regard this expenditure of funds as a more cost effective method of assuring
criminal justice than a comparable expenditure of funds on other activities of
the FBI?
(G) Could you provide the committee with a complete accounting of how the
NCIC deals with arrest records in cases where a trial is still pending, in which
charges have been dropped, in which the individual has been found innocent, in
which the individual has been found guilty, etc.? Do you insist that the informa-
tion in this regard in the NCIC be up to date? Do j^ou insist that states and
Federal officials provide disposition records as well as arrest records? If so, what
sanctions have been established to deal with officials or states that do not regu-
larly provide disposition records? Do you insist on the same standards of per-
formance by participating state systems? What safeguards have you instituted to
make certain that the regulations established in this regard are being carried out?
In what way have you changed the procedures in this area since you became
Acting Director?
For what purpose does the FBI disseminate arrest records, conviction records,
or both?
Who are the recipients of FBI arrest and conviction records? Are the recipients
ever private agencies or organizations? Are the recipients ever public agencies
other than law-enforcement agencies? If so, who are they and what is the purpose
in disseminating FBI records to such private or non-law-enforcement public
agencies?
(H) Does the FBI collect records of juvenile delinquency hearings or of hear-
ings to determine whether a person is in need of supervision (FINS)?
What procedures does the Bureau have to learn whether such juvenile records
are required to be kept secret by State law? What procedures does the Bureau have
to implement these State law requirements of confidentiality?
Are juvenile records which are required to be kept confidential by State law
ever disseminated to any other public or private agency? If so, to whom and why?
When federal agencies such as the Civil Service Commission cease to request
arrest information from the prospective employees, does the Bureau still continue
to furnish such information? If so, why?
What is the rationale for ever disseminating arrest records where the arrest
involved did not result in a conviction?
(I) What procedures exist for challenging the contents of a citizen's FBI file
where (a) the originating source for the information in the file is not the Justice
Department, or (b) it is the Justice Department?
In addition to the above questions requesting basic information, I would
appreciate answers to the following questions which I have prepared with the
cooperation of the Senior Senator from North Carolina, Senator Ervin.
(J) What is the legal status of guidelines adopted by the NCIC Advisory
Policy Board on March 31, 1971 and amended on August 31, 1971? Are they
simply general operational guidelines or have they been formally adojjted by
the Director of the FBI? Why have they not been promulgated by the Attorney
General pursuant to section 301 of Title 5 of the U.S. Code?
(K) It is clear that these guidelines relate to the interchange of information
between the central NCIC computer and the various state information systems.
As a general matter, the guidelines require the individual state systems to adopt
their own rules and regulations on specific issues concerning privacy and security.
However, it is not procedures concerning information it stores in its own computer,
e.g. information on multi-state offenders and information stored at NCIC's
own computer on an interim basis for participating states which do not yet
have the capability of keeping complete criminal history files on offenders. For
example, guideline II B. requires states to adopt a systematic audit to assure that
files are regularly and accuratelj^ updated. However, there seems to be no require-
ment that NCIC do the same with its central computer, including, how often is it
conducted? Another example of this ambiguity in the guidelines, is guideline
VI concerning Right to Challenge. That guideline makes it clear that state systems'
must adopt procedures permitting a right of access and challenge. However, it
is not clear whether NCIC has done the same for its own computer and if so,
exactly what those rules provide.
235
(L) In a letter dated October 24, 1972 attached to the GAO report on NCIC,
L. M. Pellerzi, Assistant Attorney General for Administra.tion refers to an
inaccuracy in an earlier draft of the report concerning a 9 month expungement
rule for arrests not followed by disposition. Although this is clearly not a present
rule of NCIC, was this ever used by NCIC possibly as a result of the order in the
case of Menard v. Mitchell? If such an expungement rule has never been followed,
what policy was followed by NCIC during the period that the system was subject
to the order in Menardi What technical problems exist which w-ould make it
impossible for NCIC to operate under such an expungement rule if Congress
were to reinstate Menard or a similar rule prohibiting dissemination of mw arrest
data to non-criminal justice agencies?
(M) Ms. Carey in her report on LEAA at page 45 suggests that certain state
CCH systems participating in NCIC collect and disseminate non-public record
information. However, I assume that even if this is the case, interstate exchange
of that information over NCIC would be prohibited by the guidelines. If that
assumption is invalid, please correct me.
(N) A number of provisions in the Advisory Committee guidelines require
affirmative action by the states and would take on greater meaning if the state
regulations adopted in response thereto could be made available to the Sub-
committee. Examples of such provisions are Rule II B requiring systematic audits,
Rule IV on Control of Criminal Justice Systems and Rule VI on Right to Chal-
lenge. Could you please make available to the Subcommittee staff copies of the
rules relating to security and privacy, as well as the general systems descriptions
for all the state CCH systems which have signed contracts with NCIC.
(O) The guidelines state at Rule VIII that a permanent Committee on Security
and Coniidentiality will be established. Has this Committee been established? If
so, please forward a list of its membership. Please do the same for the NCIC
Advisory Policy Board. Guideline VIII also mentions that the Committee on
Security and Confidentiality would address itself to three specific areas including
purging and secondary access. Has the Committee conducted these studies? If so,
please provide the Subcommittee with copies of any reports concerning these
studies.
(P) Have there been any inspections pursuant to Rule IX F? If so, please make
the results of such inspections available to the Subcommittee. Have any incidents
of non-compliance with the guidelines come to the attention of the Privacj- and
Security Committee? If so, please explain what action has been taken in each case.
(Q) Do the NCIC guidelines discussed above apply to the." Wanted Person
File" of NCIC or only to the CCH? If these guidelines do not apply, please
explain why?
(R) Earlier letters written by the Department in response to the survey ques-
tions prepared bj^ the Senate Subcommittee on Constitutional Rights concerning
both the Fingerprint Record Files concerning NCIC suggest an interface between
the fingerprint files and the NCIC. For example, the following statement appears
in the November 3 response by the Identification Division:
The FBI automated fingerprint processing system is being designed so that it
will be completely compatible with the Computerized Criminal History (CCH)
system . . .
Throughout the NCIC guidelines reference is made to the FBI fingerpinnt
identification card as the source document for a record entry. For example,
guideline I C is explicit in requiring some type of interface between the Identifi-
cation Records and NCIC:
Each cycle in an individual's record will be based upon fingerprint identifi-
cation. Ultimately the criminal fingerprint card documenting this identification
will be stored at the state level or in the case of a Federal offense, at the national
level. At least one criminal fingerprint card must be in the files of the FBI Identi-
fication Division to support the computerized criminal history record in the
national index.
Does this interface mean that all information circulating in the NCIC s^-stem
will become a part of the fingerprint identification records (RAP sheets)? Or is
this interface only one waj', in the sense that information from RAP sheets will
go into the NCIC system but NCIC information will not go into the Bureau's
fingerprint RAP sheet dissemination system?
(S) To what extent do the NCIC guidelines apply to the criminal history
information contained on the RAP sheets — for example, records of arrest which
frequently appear on the RAP sheets. If these guidelines do not apply, wh}^ not?
236
(Mr. Gray subsequently submitted the following document for the
record :)
Mr. Gray. I have had answers prepared to the questions submitted for the
Record by Senator Mathias. Our response is keyed to the alphabetical designation
given to each question.
(A) As of February 23, 1973, there was a total of 3,943,468 records contained in
the NCIC computer. This total is broken down as follows:
Stolen securities 1, 331, 099
Stolen vehicles 782, 983
Stolen articles 616, 123
Stolen guns 572, 232
Stolen license plates 222, 976
Stolen boats 6,490
Wanted persons 123, 358
Criminal histories 288, 207
Total 3,943,468
None of these records are summaries. With respect to the records concerning
stolen property, each record contains information which specifically identifies the
stolen item as well as the identity of the police agency which placed the article into
NCIC and which holds the theft report.
Information in the wanted persons file relates to individuals for whom Federal
warrants are outstanding or individuals who have committed or who have been
identified with an offense which is classified as a felony or serious misdemeanor
under the existing penal statutes of the jurisdiction originating the entry and for
whom a warrant has been issued. Each record shows the identitj- of the police
agency entering the record and includes information concerning the name (and
alias) of the wanted person; descriptive data (sex, race, height, weight, hair
color), as well as at least one numerical identifier (date of birth, FBI Number,
Social Security Number, automobile operator's license number) ; fingerprint classi-
fication, if known; offense charged with; date of warrant; and agency holding
warrant.
Information concerning computerized criminal histories is contained in the
response to the Question (B).
The estimate of the number of records that will be contained in NCIC one year
hence is 5,200,000; five years hence is 10,100,000; and ten years hence is
21,700,000.
(B) As of February 23, 1973, there were 288,207 criminal history records entered
in the NCIC computer. Each record represents one particular individual. None
of these are summary records. By way of explanation, computer programs have
been prepared which allow the computer, upon request, to prepare a summary
computerized criminal history record based upon the data contained in the
complete computerized criminal history record. There are submitted for the
Record two documents which will acquaint the Committee with the format of
both the complete computerized criminal history record as well as the summary
record: Simulated Record, U.S. Department "of Justice, Federal Bureau of
Investigation, National Crime Information Center Criminal History Record;
and Simulated NCIC Summary Record. It is estimated that the NCIC computer
will contain 1,000,000 computerized criminal history records one year hence;
3,000,000 computerized criminal history records five years hence; and 8,000,000
computerized criminal history records ten years hence." With respect to the 8,000,-
000 total this is beUeved to be the maximum that will be stored in the NCIC
computer.
(C) Any Federal agency can request and receive all information contained in
the NCIC for purposes of discharging its official and mandated responsibilities.
Federal agencies authorized direct access, meaning the ability to access the
NCIC computerized files by means of a terminal device, are limited to:
(1) Law enforC3ment agencies and departments that are responsible for
enforcement of Federal criminal laws,
(2) Federal prosecutive agencies and departments,
(3) Federal courts with a criminal or equivalent jurisdiction,
(4) Federal parole, probation, and correctional agencies.
There is no limitation on the length of time NCIC information may be retained
by a Federal agency.
237
Rules governing direct access to NCIC wanted persons and stolen property
records (which are equally apphcable to Federal agencies) are set forth in the
558-page NCIC Operating Manual (five copies of which will be provided the
Committee), v/hich states, "The National Crime Information Center is a com-
puterized information system established as a service to all law enforcement
agencies — local, state and Federal." Rules governing direct access to the NCIC
criminal history records are set forth on pages 12 and 13 under "Who May
Access Criminal Histoiy Data" of a document captioned, "National Crime
Information Center, Computerized Criminal History Program, Background,
Concept and Pohcy, As Approved by NCIC Advisory Policy Board," dated
September 20, 1972. (A copy of this paper has previously been furnished for the
Record.)
With respect to procedures adopted governing direct access to_ NCIC, a brief
background of the origin of the provisions contained in the NCiC pohcy paper
may be helpful. I would like to point out that the procedures apply to all users
of NCIC, both at the Federal and state levels.
Prior to implementation of the NCIC criminal history file, a resolution was
adopted May 15, 1967, by the Committee on Uniform Crime Records, Inter-
national Association of Chiefs of Police (lACP), which provided that the controls
governing access to NCIC data must remain, as they have been historically
placed, with law enforcement agencies That is, terminals having direct transaction
capability with NCIC must be located in a law enforcement agency. The NCIC
Advisory Policy Board took note of the above and concurred fully with the content
of the lACP resolvition at its meethig in W^ashington, D.C., on June 4, 1969.
The issue of shared-time governmental computerized information systems
and their compatibility with the lACP resolution was considered at length during
the June 4, 1969, Board meeting. This discussion was predicated upon the fact
that in certain localities law enforcement accessed NCIC through a computer
system operated by a civilian governmental agency.
' The NCIC Advisory Policy Board noted that the needs of law enforcement in
information storage and retrieval as well as in message interchange could not be
adequately served by other than a dedication of computer and related hardware.
Further, it was noted that in those instances where such dedication of the system
to law enforcement did not exist, management control of the law enforcement
application within that system should be established.
The wanted persons and stolen property data stored in NCIC is considered
documented police information and access to that data is for use of duly authorized
law enforcement agencies. It is incumbent upon agencies operating an NCIC
terminal to afford the necessary measures to make that terminal secure from any
unauthorized use. Any departure from this responsibility would warrant the re-
moval of the offending terminal from further system participation in order to
protect all other users.
Agencies participating in the NCIC as control terminals are charged with
assuming responsibility for and enforcing sj'stem security with regard to all other
agencies which they in turn service.
The FBI daily monitors transactions coming into the NCIC computer. We also
utilize communications equipment and computer programs which assist in
assuring that security requirements are being met. In the last analysis, we must
depend on the individual agencies for maintenance of the confidentiality of
NCIC information.
With the establishment of the NCIC Computerized Criminal History Program
in December, 1970, the NCIC Advisory Policy Board in March, 1971, readdressed
NCIC policy specifically as it relates to the interstate exchange of criminal history
data. One requirement adopted by the NCIC Advisory Policy Board in March,
1971, and approved by the Attorney General in June, 1971, was that all computers
capable of interfacing directly with the NCIC computer for the interstate exchange
of criminal history information must be under the management control of a crim-
inal justice agency authorized as a control terminal agency.
Control terminal agencies in the NCIC system prior to being allowed the right
to receive criminal history data are required to complete an agreement binding
the agency to abide by all present and future rules, policies, and procedures of
the NCIC as approved by the NCIC Advisory Policy Board and adopted by
NCIC. The control terminal agencj'- has responsibilitj^ for enforcing system
security with regard to other agencies which it in turn services. A control terminal
not qualified to receive criminal histor.y data is locked out of receiving such data
b}^ the NCIC computer.
91-331—73 16
238
From May 3, 1972, to date, three changes have occurred with respect to criminal
history policy of the NCIC.
As state computer systems' development progressed, it became evident that
some states were centralizing computer operations in other than criminal justice
agencies. In order to allow participation in the criminal history program by
those states where the state computer is not under the direct control of a criminal
justice agency, the NCIC Advisory Policy Board on September 20, 1972, adopted
the following modification of policy which is in effect at the present time.
In those instances where criminal justice agencies are utilizing equipment and
personnel of a noncriminal justice agency for NCIC/CCH purposes, the following
criteria will apply in meeting NCIC/CCH management control provisions:
(1) The hardware, including processor, communications control, and storage
devices, to be utilized for the handling of criminal history data must be dedicated
to the criminal justice function.
(2) The criminal justice agency must exercise management control with regard
to the operating of the aforementioned equijiment by:
a. having a written agreement with the noncriminal justice agency operat-
ing the data center providing the criminal justice agency authority to select
and supervise personnel,
b. having the authority to set and enforce policy concerning computer
operations, and
c. having budgetary control with regard to personnel and equipment.
Further, the origirial policy paper of NCIC designated the types of agencies,
such as the police, prosecutive departments, the courts, and correctional institu-
tions that could directly access the NCIC/CCH File. No allowance was made
for a state agency which had as its sole function by statute the development and
operation of a criminal justice information sj^stem. Thus, it became necessary
for the NCIC Advisory Policy Board to consider the matter of whether such
a state agency would be able to have direct access to the criminal histor}' informa-
tion contained in NCIC. After consideration, on September 20, 1972, the Board
broadened the category of agencies that can access NCIC for criminal history
data to include such agencies.
The policy of the NCIC, before it was amended September 20, 1972, provided
that criminal history data on an individual from the national computerized file
would be made available outside the Federal Government only to criminal justice
agencies for criminal justice purposes. This precluded the dissemination of such
data for use in connection with licensing and local or state employment other than
with a criminal justice agency. The policy specifically stated, "There are no ex-
ceptions pending legislative action at state and Federal level or Attorney General
regulations."
Public Law 92-184, approved December 15, 1971, provided for the exchange of
identification records, as authorized by state statutes and approved by the
Attorney General, with officials of state and local governments for purposes of
employment and licensing.
By reason of the passage of Public Law 92-184, this particular section of the
NCIC policy paper was amended to read as follows:
"Criminal history data on an individual from the national computerized file
will be made available outside the Federal Government only to criminal justice
agencies for criminal justice purposes. This precludes the dissemination of such
data for use in connection with licensing or local or state employment, other than
with a criminal justice agency, or for other uses unless such dissemination is
pursuant to state and Federal statutes. There are no exceptions."
Experience to date indicates that the security and confidentiality recjuirements
as contained in the NCIC policy paper governing access to criminal history
records are sufficiently stringent and no studies have been conducted since May 3,
1972, in this area.
Presently, NCIC criminal history records are being exchanged with various
criminal justice agencies which have signed agreements with the FBI to abide by
all rules, polices and procedures of the NCIC as approved by the NCIC Advisory
Policy Board. This agreement includes a provision which states that NCIC
reserves the right to immediately suspend furnishing criminal history data to a
criminal justice agency when either the security or dissemination requirements
approved by the NCIC Advisory Policy Board and adopted by the NCIC are
violated. Agencies serviced within a state by a state computer system tied to the
NCIC enter into a similar agreement with the state system. It is a responsibility
of the state system to insure its users abide by policy, security and dissemination
239
requirements of the NCIC. Any noncompliance is subject to inspection and review
by the NCIC Advisory Policy Board and failure to conform with NCIC policy
can result in discontinuance of service to the user agency.
We have no knowledge of any case of improper access to NCIC.
(Dj A Federal agency can give information obtained from NCIC to another
agency outside the FBI.
With respect to information obtained from the NCIC Wanted Persons and
Stolen Property liles by a Federal agency, there is no specific restriction as to
further dissemination of the information by that agency. The NCIC Operating
Manual recognizes that information obtained can be exchanged with other gov-
ernmental bodies (at any level) on a need-to-know basis. Traditionally, data such
as this has been freely exchanged among law enforcement agencies and we have
no regulations governing such exchange.
With respect to furnishing a computerized criminal history record to another
Federal agencj", an admonition is contained on the record that it is provided for
official use only. The FBI has no further control over the information once it
leaves our possession. We must rely upon the Federal agency to afford proper
security to the information. We give the record to the Federal agencj' for its
official use. If the Federal agency has an official use in furnishing the record to
someone outside the FBI (such as a U.S. Attorney giving the record to a U.S.
Judge), then it could do so. Criminal history records are regarded as confidential
and safeguards protecting against their imauthorized disclosure rest at the Federal
agenc}^ level to which dissemination is made. Unauthorized use of a criminal
historj' record by a Federal agencj' could subject that agency to possible termina-
tion of the NCIC criininal history service.
The only changes in NCIC policy during my tenure as Acting Director have
been set out in the answer to Question (C).
By reason of the fact that any dissemination we make of criminal history data
is made pursuant to Federal statute or regulations, and further because we have
absolutely no knowledge of instances of improper dissemination of criminal history
data, no studies have been undertaken directed toward changing dissemination
policy. The FBI will support Federal legislation which would provide civil and
criminal remedies against anyone responsible for unauthorized dissemination of a
criminal history record.
(E) Initially it should be understood that the NCIC is a user's system. The
states have been instrumental in the development of all NCIC poUcy including
that which deals with security and privacy". The policy has been developed and
discussed at various regional and national meetings since the inception of NCIC.
The states are expected to establish a stringent system of safeguards comparable
to NCIC. Each has been provided copies of the NCIC pohcy paper. This paper
along with the security procedures and policy included in the NCIC Operating
Manual and the NCIC/CCH agreement which must be signed by participants in
the Computerized Criminal History Program provides a model on which the state
systems can base state regulations for safeguards against misuse or improper
access.
A summary of safeguards regarding each state which provides or receives in-
formation from NCIC is not available. There is being submitted for the Record,
pursuant to the request made in Question (N), a copy of one state's rules and
regulations, as well as copies of two states' user agreeiuents, which we believe to
be representative of the safeguards being adopted l)y the states.
Although states following NCIC safeguards are considered to have adequate
safeguards, we recognize a need for Federal legislation containing provisions for
civil and criminal remedies for misuse of the system, especially the Computerized
Criminal History File. In this regard, legislation was introduced on September 20,
1971, cited as "Criminal Justice Information Systems Securitj^ and Privacy Act of
1971." This proposed legislation, in addition to other provisions, contained man-
agement control requirements consistent with the NCIC policy and provided civil
and criminal remedies for misuse of criminal history data. This proposed legislation
was not enacted.
(F) With respect to the questions posed concerning NCIC costs, it should be
pointed out that costs for development and operation of the NCIC fall into two
areas — FBI costs and state costs. FBI costs are for the central computer in NCIC
and for oi)erating this facility and the network it serves; namely, the dedicated
communications lines to the various state and local law enforcement control
terminals. The only communications costs to be borne by the states are the intra-
state communications lines making up state network systems. The FBI's portion
240
of NCIC costs is specifically earmarked in the FBI's budget and is paid out'of
appropriated funds.
Insofar as state costs are concerned, cost data could onlj- be ol>tained through a
detailed analysis with respect to each of the 50 states because of the separate and
varying proljlems and conditions that exist in each state. As a consequence, we
have no knowledge or information concerning states' costs for development and
operation of their data systems which may be devoted in whole or in part to the
NCIC system. We have been advised that LEAA has a Comprehensive Data
Systems Program for funding state data systems which in many cases will include
NCIC and computerized criminal history facilities. We have been advised that
LEAA is requiring each state to submit a computerized data system plan which
will include an estimate of total costs plus required incremental cost to be sup-
ported by the Federal Government. Based on this reported LEAA requirement, it
is expected that state costs for development of data sj'stems, including state
NCIC costs, will become available in the future.
In response to the request for FBI cost data, a schedule showing the amount of
funds expended by the FBI from the inception of NCIC, along with funds budg-
eted for the next five years for NCIC operations, follov/s:
FBI costs for National Crime Information Center
Year : Cost
1966 $94,329
1967 105, 194
1968 130, 915
1969 325,598
1970 1, 752, 516
1971 2, 786, 865
1972 3,978, 508
19731 5, 178,455
19741 7,888, 142
19751 6,623,813
19761 7, 656, 948
19771 9,081,226
19781 10,933,214
1 Actual and estimated.
In 1967, the President's Commission on Law Enforcement and Administration
of Justice declared, "An integrated national information system is needed to
serve the combined needs at the national, state, regional and metropolitan or
county levels of the police, courts, and correction agencies, and of the public
and research community." The NCIC system substantially complies with the
kind of system prescribed by the President's Commission. It has been widely and
enthusiastically accepted by the law enforcement community and hailed by
law enforcement people at all levels. It is one of law enforcement's greatest
advances. In our view the tax dollars spent on this vahiable criminal justice
information system are well invested and highly justified in relation to other
expenditures in the fight against crime.
(G) In responding to this question, it should be recognized that while the
Wanted Persons File and the Stolen Property Files of NCIC have full participa-
tion by ail states, there is limited participation at this time by the states in the
interstate exchange of criminal history records. Tlie state programs which will
result in the full system described in the NCIC policy paper are in varying stages
of development. For the system to be fully operational vvill require that each of
the states possess essential services such as identification, information flow, and
computer systems capabilities. Until such time as this full capabilitv is realized,
we must operate with the criminal history data that is acquired by the states and
within the framework of the states' technical resources.
By way of further background, the FBI Identification Division has served
since 1924 as the national clearinghouse for fingerprint cards and identification
records. In that capacity it acts as the custodian of fingerprint identification
information submitted by various law enforcement and governmental agencies
on the Federal, state and local levels. Responsibility for the accuracy and com-
pleteness of the information contained in the record rests v.ith the arresting or
contributing agency and only that agency can change or alter the record. The
FBI's fimction is to exchange such data with these authorized sources. There has
been previously furnished for the Record Section 534, Title 28 of U.S. Code and
241
the pertinent portion of Public Law 92-544 which is the statutory authority" for
the FBI to collect and exchange identitication records.
With specific reference to how NCIC deals with an arrest record, once a com-
puterized criminal history record has been established concerning an individual,
an.v arrest data received is entered into that record. At such time as additional
information is received, such as eliarges dropped, acquittal, or conviction, this
data likewise would be entered into the record to show the disposition of the
arrest.
If an inquiry is received at any time for the criminal history record, the record
as currentl}- existing is furnished.
We have constantly urged that both arrest and disposition data be submitted
promptly to the FBI so that the manual records, as well as those records that
have been computerized, can be kept up-to-date. We have supplied to the Com-
mittee a detailed account of FBI efforts in this respect.
There are no sanctions, mandatory requirements or performance standards to
assure nationwide reporting of disposition to either the computerized or manual
systems. This is unfortunate, but true, and I support Federal legislation to require
reporting of arrest disposition. Participation in both the computerized and man-
ual programs is voluntary on the part of all states and contributors. The design
of the NCIC/CCH system was accomplished with the cooperation of the states
and was done with the intention of better serving the criminal justice system
and improving the reporting processes. Implicit in the design is the inclusion of
arrest dispositions.
Since May 3, 1972, two changes have occurred in the handhng of identification
i-ecords in the manual system. On December 26, 1972, the Attorney General
approved a policy whereby the FBI will not accept for retention or recording
on the record, data on certain minor offenses. In addition, m our manual system
we are no longer maintaining data on persons 80 j-ears or older. These changes
were initiated to make the manual system consistent with criteria adopted for
handling of computerized criminal history records.
In accordance with statutory authority, arrest and conviction data Ls dis-
seminated to authorized recipients of such data for law enforcement purposes,
Federal employment screening purposes, and emploj^ment and licensing purposes
on the local level when appropriately authorized by state statute. It should be
noted at this point in time, such dissemination is almost entirely from the manual
sj'stem by reason of the limited data base of CCH.
Arrest and conviction data is disseminated from our files to authorized officials
of the Federal Government, the states, cities and penal and other institutions
for oflricial use only. Any Federal agencies, upon request, can receive such data
for official use. Except for federally chartered or insured banking institutions as
specifically provided by statute (Title II, Public Lav/ 92-544), no arrest or con-
viction data maintained by the FBI is disseminated to private agencies. In accord-
ance with our statutory authority, we do disseminate arrest and conviction data
to Federal, state and local governmental agencies for other than law enforcement
purposes. Such dissemination is for the purpose of employment screening or
licensing. Examples of such agencies include Education Boards, Alcoholic Beverage
Control Boards,' Real Estate Boards, as well as licensing authorities for issuing
of gun permits, legal and medical licensing boards and the like.
(H) The FBI Identification Division does not collect records of juvenile delin-
cjuency hearings or of hearings to determine whether a person is in need of super-
vision. Data collected by the Identification Division relates to individuals who
have been arrested and the disposition of such arrests. If an individual is placed
on parole or probation as the result of arrest charges furnished to the FBI, the
parole or probation information will be posted to his identification record. Subse-
quent arrest data received during the term of parole or probation will be furnished
to the ci-iminal justice agency supervising the individual during the probationary
or parole period.
With respect to procedures the FBI has to learn whether juvenile records are
required to be kept secret by state laws, the massive size of the criminal files of our
manual identification sj'stem prohibits the segregation of juvenile arrest records
from adult arrest records. All contributors of arrest data are aware that the FBI
does not have any provisions for keeping juvenile arrest records which have been
ordered sealed or which are otherwise required to be kept confidential in a separate
file and all contributoi-s were last advised of this fact by letter dated January 22,
1971. Consequently, the FBI Identification Division" has filed juvenile arrest
records in its general criminal file when such cards were submitted to it unless the
arrest data contained on the juvenile arrest fingerprint card or disposition report
242
indicated that the arrest information had been ordered sealed or was otherwise
required to be kept confidential. All incoming arrest data to the FBI Identification
Division is reviewed upon receijjt and those juvenile records containing informa-
tion indicating the arrest data has been ordered sealed or otherwise kept confi-
dential are extracted and returned to the submitting agencies for appropriate
compliance with the sealing provisions of state law. No record of such juvenile
arrest data is maintained by the FBI Identification Division and no subsequent
dissemination of such juvenile arrest data is possible. This procedure implements
state law requirements of confidentiality as to juvenile arrest records.
The NCIC/CCH file from its inception has excluded juvenile offender informa-
tion unless the juvenile has been tried in court as an adult. With the approval of
the Attorney General to establish a uniform criteria for juvenile arrest data
maintained by the FBI, in February, 1973, all contributors of arrest information
were advised that juvenile arrest records would be excluded from the files of the
manual identification system unless the arrest data submitted clearh- indicated
that the juvenile had been tried in court as an adult. In impleirienting this policy,
all juvenile records currently being received by the FBI which do not clearly
indicate the juvenile has been tried in court as an adult are being returned to the
submitting agency and no record of the arrest is maintained by the FBI.
Juvenile arrest records submitted to the Identification Division which contain
information indicating the arrest data is required to be kept confidential by state
law are not retained by the FBI, and therefore, are never disseminated to any
other agencies. Arrest data from a juvenile record which is retained by the FBI,
such as a record of a juvenile tried in court as an adult for a serious ofTense, may
be disseminated upon inciuir^- from agencies authorized to receive such data.
Such dissemination is made in the same manner and to the same agencies entitled
by our statutory authority to receive adult criminal arrest data. Except for
Federally chartered or insured banking institutions as specifically provided by
statute (Title II, Public Law 92-544) no arrest data maintained by the FBI is
disseminated to private agencies.
Even though Federal agencies such as the Civil Service Commission may cease
to recjuest arrest information from prospective employees, the FBI Identification
Division will furnish arrest data to the particular agency in response to the receipt
of an applicant fingerprint card from that agency. This is done in compliance with
Title 28, Section 534, United States Code and Public Law 92-544, which author-
izes the FBI, among other things, to collect and exchange identification records
with officials of the Federal Government. To prohibit the dissemination of an
arrest record of an applicant for Federal employment could have harmful efiects
on our national security and our ability to maintain the integrit;/ of our govern-
mental institutions. Military facilities would be unable to properly evaluate the
propriety of placing an applicant in a position where he would have access to
sensitive information or a Government agency, attempting to fill a position in its
payroll office, would not be able to determine if an applicant had been arrested for
embezzlement if dissemination of such prior arrest records were prohibited.
The arrest record files of the FBI Identification Division as well as those of
many State and local Identification Bureaus are replete with length}^ arrest records
of long-time hoodlums and members of organized crime whose arrests never re-
suited in conviction. Many sex offenders of children are not prosecuted because
parents of the victim do not want to subject the child to the traumatic experience
of testifying. Others are not tried because ke}- evidence has been suppressed or
witnesses are, or have been made, unavailable. The latter situation is not uncom-
mon in organized crime cases. To prohibit dissemination of such arrest records
would be a disservice to the public upon whom the}^ might prey again. Regardless
of whether or not an arrest is supported by a conviction, certainly the Federal
Government and the law enforcement community have the right to be informed of
arrest data for purposes of Federal security clearances and in discharging all law
enforcement responsibilities. We have had cases in recent years wherein the subject
of a rape case has had the case against him dismissed because of a legal technicalitv
and subsequently the subject admitted before a United States District Judge that
he was in fact guilty of the crime. Barring expungement, should law enforcement be
prohibited from receiving the past arrest record of this individual who may well
commit a similar crime again? In another such case, an individual attacked one of
our own female FBI employees with a knife; he was subsequently committed to
St. Elizabeth's Hospital and then released. Following his release, "he was arrested
again for assault and not convicted. Thereafter, he applied for employment with a
law enforcement agency and this arrest information certainly would be pertinent in
243
considering his application. When one considers the potential school teacher with
two prior rape arrests and no convictions, a gun permit applicant with three prior
felonious assault arrests and no convictions, an applicant at a Federally chartered
bank with a grand larcenj' arrest and two bank burglary- arrests and no convictions,
and a police applicant with a prior peeping torn arrest and no conviction, the
rationale for disseminating arrest records not supported bj- convictions is sub-
stantial.
It should be noted that all arrest records disseminated from the FBI Identifica-
tion Division carry a caveat that admonishes the recipient to communicate with
the agency contributing the fingerprints, where the disposition is not shown or
further explanation of the charge or disposition is desired. In addition, our Final
Disposition Report forms, which are made available without charge to all con-
tributors of fingerprints to the Identification Division, contain instructions and
an admonishment j^ertaining to the vital value of the Final Disposition Report.
This Final Disposition Report form points out emphatically that it is vitally
important for completion of a subject's record in the FBI Identification Division
files that the report be submitted in every instance where fingerprints were pre-
viously forwarded without the final disposition noted thereon.
(I) Procedures have been in existence for manjr years which allow a citizen to
challenge the contents of his fingerprint arrest record maintained by the FBI
Identification Division. Generally, such challenges must be initiated with and/or
channeled through the original arresting agenc^y.
In the case of non-Federal arrests and convictions the FBI Identification
Division serves merely as custodian of the information submitted by contributing
agencies and any request for altering, amending or removing data in the finger-
l^rint files must be received from the law enforcement agency which originalh^
submitted the information. This procedure provides authentication for the re-
quest, as well as providing positive identif jung data which enables us to make the
necessary changes in the particular arrest record. The FBI interposes no objection
to expunging such non-Federal arrest data and regularly effects such expunction
by returning fingerprints to the arresting agency. This usually occurs when
charges have been dismissed, subject acquitted or other similar action taken. The
return of the fingerprints results in the complete and automatic exuunction of
the arrest record from our files.
Concerning Federal arrests and convictions (where the originating source for the
information in file is the Justice Department or some other Federal law enforce-
ment agency) the FBI Identification Division will, upon recei]3t of inquiry from
a citizen who provides sufficient identifying data to locate an an-est and conviction
record in our files, look into the matter through contact with the Federal arresting-
agency involved and correct or amend the arrest record based on the facts that
are established. Federal arrest fingerprints may be expunged onl.y on the basis of an
official court order and the courts usually require the Federal agency originally
submitting the arrest fingerprints to the FBI Identification Division to retrieve
the record. In other words, the original submitting agency should request expunge-
ment of the record in cjuestion. In all Federal expungement cases, the United
States Attorney requests the court to order that the fingerprints of the party
seeking expungement be taken for comparison with the prints on the record to be
expunged in order to assure that the right record is erased.
The same basic procedures would apply in the event a record in the CCH file
was challanged.
(J) The NCIC Policy Paper takes on legal status when a state seeking participa-
tion signs an agreement, which is in the nature of a contract, to abide by the
terms set forth therein. This paper, which has been furnished to the Committee,
has remained substantially the same since ]\Iarch 31, 1971, with only minor
modifications, since that time. The material contained in this document has been
formally adopted by the Director of the FBI and approved by the Attorney
General.
No suggestion has been made to the Attorney General to promulgate the
provisions of the NCIC policy paper pursuant to Section 301 of Title 5 of the
U.S. Code as it is believed that specific Federal legislation is needed.
It is noted in this regard that Public Law 91-644 amending the Omnibus
Crime Control and Safe Streets Act of 1968 provides in Section 519(b) of the Act
that, "Not later than May 1, 1971, the Administration shall submit to the Presi-
dent and to the Congress recommendations for legislation to assist in the purposes
of this title with respect to promoting the integrity and accuracy of criminal
justice data collection, processing, and dissemination systems funded in whole
244
or in part by the Federal Government, and ]3rotecting the constitutional rights
of all persons covered or affected by such systems."
On September 20, 1971, the Attorney General submitted to the Congress for
its consideration a legislative proposal entitled "Criminal Justice Information
Systems Security and Privacy Act of 1971." Section 6 of this Legislative Proposal
states, "The Attorney General is authorized, after appropriate consultation with
representatives of State and local law enforcement agencies participating in
information S3^stems covered by this Act, to establish such rules, regulations and
jDrocedures as he may deem necessary to effectuate the provisions of this Act."
The proposed legislation was not enacted.
CK) The FBI functions both as administrator of the NCIC system, and as a
user agency. The FBI, as a user, is subject to and abides by the rules, policies,
and procedures as set forth in the NCIC policy paper. The NCIC staff receives
from the Identification Division arrest and disposition data on Federal offenders
for entry or updating in the CCH File. Similar data submitted by nonparticipating
states where there is an existing CCH record on file is received from the Identifica-
tion Division so that the existing CCH record can be updated. Procedures utilized
for the processing of the data provide for a continuing audit of the records on file.
The NCIC policy paper states, "The person's right to see and challenge the
contents of his record shall form an integral part of the system with reasonable
administrative procedures." "Access" is permitted only for criminal justice
agencies. Item (I) above discusses procedures for challenging the contents of a
manual record. These procedures are also applicable to the computerized record.
(L) The draft of the report by the Comptroller General of the United States
to the Congress of the United States entitled "Development of a Criminal History
Exchange — Need to Determine Cost and Improve Reporting" erroneously
reported that an NCIC official had said that if an arrest recorded in the criminal
history exchange system is not followed by a related disposition entry within
9 months, the arrest entry will be removed.
No such 9-month rule for removal of arrest entries has been or is in existence
in the NCIC comvjuterized criminal history program and, consequently, was
never used by NCIC as a result of the order in the case of Menard v. Mitchell
or anj^ other case.
The expungement policy followed by NCIC with respect to the computerized
criminal history program since its inception has remained unchanged. It is as
follows:
Each control terminal agency (a state criminal justice agency on the NCIC
system servicing statewide criminal justice users with respect to criminal history
data) shall follow the law or practice of the state or, in the case of a Federal control
terminal, the applicable Federal statute, with respect to purging/expunging data
entered by that agency in the nationally stored data. Data may be ])urged or
expunged only by the agency originally entering that data. If the offender's
entire record stored at the national level originates with one control terminal and
all cycles (a "cycle" consists of data concerning an arrest and the subsequent
judicial action and correctional status changes related thereto) are purged/ex-
punged by that agency, all information, including personal identification data
will be removed from the computerized NCIC file.
This policy rests on a fundamental concept of the NCIC computerized criminal
history program which is stated as follows :
* * * The NCIC system places complete responsibility for all record entries
on each agency — local, state, or Federal. Likewise, clearance, modification and
cancellation of these records are also the responsibility of the entering agency.
Each record, for all practical purposes, remains the possession of the entering
agency. * * *
Should the Congress prohibit dissemination of "raw arrest data to noncriminal
justice agencies" it would be possible, technically, to identify the "raw arrest
data" in NCIC on the basis of definition. Responsibility for restricting dissemina-
tion would rest with the control terminal agency in each state and the Federal
control terminal (FBI). It is technically possible to so restrict the dissemination,
having knowledge of the identity of the requesting/inquiring agency.
(M) Nonpublic information may not be stored, exchanged or disseminated
through or by the NCIC system.
(N) Copies of the various regulations adopted by the states relative to securitv
and privacy, and general descriptions of their individual systems have not generally
been made available to the FBI.
245
We do have and make available for the Record the rules and regulations for
the Ohio System (document titled "LEADS, Rules and Regulations"); We also
have available copies of an agreement which the States of Michigan and Georgia
require to be signed by their system users. These are submitted for the Record
(document captioned '"Exchange of Criminal Justice Information Agreement"
and document captioned "Law Enforcement Information Network, Computerized
Criminal History Participation Agi-eement-LEIN/NCIC").
The security and privacy provisions of the NCIC system, as contained in the
NCIC policy paper previously submitted to the Committee, represent the mini-
mum required of the participating states in that regard, and the individual states
may, of course, establish more stringent requirements within the provisions
adopted for the NCIC system overall. The NCIC poUcy paper requires under
Rule IX A that, "Each control terminal agency shall sign a -^Titten agreement
with the NCIC to conform with system policy before participation in the criminal
history program is permitted. This would allow for control over the data and
give assurance of system security." The agreement required by Rule IX A is
signed by the head of the appropriate state agency and the Director (or Acting
Director) of the FBI. A copy of the standard agreement is attached for the
Record (document titled "Federal Bureau of Investigation, National Crime
Information Center, Interstate Exchange of Computerized Criminal Histories
Agreement").
(O) The permanent Committee on Security and Confidentiality was established
by the NCIC Advisory PoUcy Board on August 18, 1971. The hst of members
follows :
Colonel John Plants, Michigan State Police — Chairman
Mr. Herbert D. Brown, Illinois Department of Law Enforcement
Dr. Robert R. J. Gallati, New York State Identification and Intelligence
System
Mr. O. J. Hawkins, CaUfornia Department of Justice
Colonel D. B. Kelly, New Jersey State Police
Dr. Howard Livingston, North Carolina Pohce Information Network
jNIr. William L. Reed, Florida Department of Law Enforcement
Colonel Wilson E. Speir, Texas Department of Public Safetj'
FBI— NCIC Representative
The current Chairman of the NCIC Advisory Policy Board is selecting a new
Security and Confidentiality Comniittee.
The current membership of the NCIC Advisory Policy Board is as follows:
Chairman
Mr. O. J. Hawkins
Assistant Director
California Department of Justice
Sacramento, California
Vice Chairman
Colonel D. B. Kelly
Superintendent
Department of Law and Public Safety
Division of State Police
West Trenton, New Jersej^
Mr. William E. Kirwan
Superintendent
New York State Police
Albany, New York
Major Albert F. K^iatek
Director of Technical Services
Pennsylvania State Police
Harrisburg, Pennsylvania
Colonel Walter E. Stone
Superintendent
Rhode Island State Police
North Scituate, Rhode Island
:Mr. John R. West
Deputy Superintendent
Boston Police Department
Boston, Massachusetts
See footnotes at end of table, p. 246.
Colonel Robert M. Chiaramonte
Superintendent
Ohio State Highway Patrol
Columbus, Ohio
Mr. Edmund I. Hockaday ^
Superintendent
Missouri State Highway Patrol
Jefferson City, Missouri
Mr. Clarence M. Kelley
Chief of Police
Kansas City, Missouri
Mr. Robert K. Konkle
Superintendent
Indiana State Police
Indianapolis, Indiana
Colonel John R. Plants
Director
Division of State Police
East Lansing, Ixlichigan
Colonel R. L. Bonar
Superintendent
West Virginia State Police
South Charleston, West Virginia
Captain J. H. Dowling
Communications Bureau
Police Department
Memphis, Tennessee
246
Dr. Howard M. Livingston Mr. Oliver Furseth i
Director, North Carolina Police Infer- Chief
mation Network Washington State Patrol
Department of Justice Olympia, Washington
P^aleigh, North Carolina Mr. L. Clark Hand
Colonel Rav Pope Superintendent
Director ^ Idaho State Police
Department of Public Safetj^ Boise, Idaho
Atlanta, Georgia Colonel James J. Hegarty
Honorable WilUam L. Reed Director
Commissioner Arizona Department of PubUc Safety
Florida Department of Law Enforce- Phoenix, Arizona
ment Mr. George P Tielsch
Tallahassee, Florida Chief of Police
Seattle, Washington
1 Now retired— these former members not yet replaced.
The Securitv and Confidentiality Committee addressed the matter considering
the criteria for'the purging of records from the NCIC computerized criminal history
file bv recommending that consideration should be given to this purging at the
national level only in the event of inaction by the states and that no action should
be instituted at the national level to establish purge criteria at that time. It was
believed bv the Committee that each state should be developing its own criteria
for purging. The NCIC Advisory Policy Board which met September 19-20, 1972,
in Washington, D.C., concurred" in the Committee's recommendation.
No considerations have been afforded criteria for secondary access to criminal
history data or a model state statute for protecting data in the development of a
new svstem.
(P)" There have been no inspections pursuant to Rule IX F of the NCIC policy
paper. Since the inception of CCH on-line availability on November 29, 1971,
there have been no allegations of security violations made to the Security and
Confidentialitv Committee and thus there has been no need for an inspection.
It can l)e noted that the Security and Confidentiality Connnittee has been
active with respect to the security and privacy issue. In 1972, the Connnittee
reviewed a number of criminal justice information systems v.hich were desirous
of participating in the interstate exchange of criminal history information in the
near future to determine if they would meet the criminal justice management
control provisions of the NCIC Advisory Policy Board. Five states and one
metropolitan system were found to not meet the requirements at this time. These
agencies have been advised of the reasons for exclusion bj^ the Committee so they
may take necessarv steps to qualif.y for CCH participation.
(Q) Provisions of the NCIC Computerized Criminal History Program Back-
ground, Concept, and Policy document relate to the NCIC Computerized Crim-
inal Historv Program and not to the NCIC Wanted Person File.
The NCiC Advisory PoUcy Board considers data in the NCIC Computerized
Criminal History File to be sensitive and, as such, to be guarded against misuse.
It does not take that position with respect to persons for whom arrest warrants
are outstanding (wanted persons). It is considered to be in the public interest to
allow information concerning persons who are fugitives from justice to lie made
readih^ available to persons in the criminal justice community and the public (the
more "exposure — the greater the likelihood the fugitive will be identified and
apprehended). As a practical matter, it should be recognized that although the
same restrictions do not exist concerning wanted persons records as on criminal
history records, onh-^ criminal justice agencies have the capability of accessing
wanted persons information in the NCIC computer. However, no restrictions
exist with respect to dissemination of wanted persons records received by criminal
justice agencies.
(R) Recognizing that the liberty, or even the life, of an individual might be at
stake, law enforcement has traditionally taken greater care to determine the true
identity of the subjects of its records than any other record-keeping profession.
The most positive means of identifying individuals known to date is fingerprint
examination. Yet, only law enforcement over the years has used fingerprint
identification as a means of insuring the accuracj^ and integritj^ of its records.
247
For example, it has been standard operating procedure at the FBI Identification
Division to require that every entry on a manual identification record ("rap"
sheet) be backed by an arrest fingerjarint card. This means that before any new
arrest data is added to an existing record, the fingerprints appearing on a current
arrest card must ])e compared with the fingerprints already on file of the person
who is the subject of the record. Further, it is only on the basis of a fingerprint
comparison that a manual identification record will be disseminated as positively
belonging to a particular individual.
The fingerprint comparisons are performed by skilled technicians. If a finger-
print technician finds the two sets of fingerprints to be identical, his finding must
be verified by having another technician compare the prints, as a "double check"
procedure, before new arrest data is added or the record is disseminated as a
positive identification. The objective of this meticulous procedure is to avoid
false entries in a person's identification record and to insure against associating a
record with the wrong person.
In view of the traditional use of fingerprints as a device to insure the validity
of law enforcement records, it was only natural that the fingerprint card would
be adopted by law enforcement when it developed the Computerized Criminal
History (CCH) program for NCIC. Hence, the NCIC guidelines require a "crimi-
nal fingerprint card taken at the time of arrest as the basic source document
for all record entries and updates" and "at least one criminal fingerprint card
must be in the files of the FBI Identification Division to support the computerized
criminal history record in the national index."
Besides its identification role, the FBI Identification Division assists the CCH
program by making available manual identification records (rap sheets) on persons
who have a prior history of arrests so that these past arrests can be made a part
of the computerized record when that person is made a subject in CCH. Under
the NCIC guidelines concept, once a person's manual record is converted to a
computerized record in CCH, the CCH record supplants the manual record.
Therefore, under this concept, arrest infoi'mation from manual rap sheets will be
entered into the CCH system, but CCH arrest information will not go into the
FBI's manual rap sheet dissemination system.
The FBI Identification Division is presently engaged in a program to automate
its OT\Ti internal work procedures. This is being done to achieve greater efficiency
and to realize manpower and operating cost savings to the Government. The
automated fingerprint processing system for the Identification Division is being
designed to be compatible with the CCH system. This is being done in order to
facilitate and improve the Identification Division's ability to carry out its re-
sponsibilities under the NCIC/CCH program.
(S) The NCIC guidelines appl.y only to criminal history information contained
in the Computerized Criminal History (CCH) system and not to that contained
in manual identification records ("rap" sheets). This is because the guidelines
were written to provide guidance and controls for the computerized information
system that makes up CCH and not the older manual rap sheet system which
is to be eventuallj' supplanted. Further, it must be recognized that many of the
system requirements of the NCIC guidelines would be inapplicable, vmnecessary,
or impractical in the case of manual files. Of course, once criminal history infor-
mation is copied from a manual identification record and entered into a CCH
record, that information becomes part of the CCH system and is governed bv
the NCIC guidelines.
Although the NCIC guidelines do not ajiply to manual identification record
files, most of the major provisions of the guidelines are followed in the operation
of the manual files. This results partially from the fact the guidelines incorporate
responsibilities and constraints contained in enal:)ling statutes, laws, and regula-
tions that affect both the computerized and manual systems. And, partiallj^ from
a conscious effort on the part of the administrators of both the NCIC and the
manual identification record systems to achieve uniformitA^ wherever practical.
Examples of this are the adoption by the NCIC guidelines of the traditional
manual sj'stem practice of requiring a fingerprint comparison prior to entering
data into a record, and the recent adoption by the FBI Identification Division
of the NCIC guideline policy of no longer accepting records on nonserious offenses
for storage at the national level.
248
SIMULATED RECORD
milTED STATES DEPARTMDIT OF JUSTICE
FBBERAL BUREAU OF INVESTIGATION
HATIONAI. CRIME IKFCP^IATIOK CHiTER
CRIMMAL HISTORY f'^'^°^^j,^^^2ih%7. ''ATE RECORD PRINTED 1/23/73
MKE/EH-C HAM/DOE, JOHN SEX/M RAC/W POE/FL 008/09221*3 HGT/SOyKTA 60
EYE/SRO HAI/BRO SHT/SC R KiD FPC/20O61OC01O1205O3O91O ICO/ARMD AUD DANGEROUS
ADDITIONAL IDEMTIFIEHS -
£XT/£C CXIN SC L mD
AKA/SXIIH, HARBY/DOS, JIM
EST.-US DHE/021372 DLU/110V72
CYCLE 1-
ARREST- ACCY/US ti^RSHALL IKDIMIAPOLIS I" STATE 1D/F0522V3 NA!ffi USED/SMITH, KARF.Y DATE AER/122S68
OIArOS no/01 CITATICN/I18/US/2312
OFFEIiSE/INTERSIATE THAJJSr STOLE! VEH-DYER ACT
C!UFCS !.'0/02
offe;:s£/carrying concealeb-ccw
COUP.T- AGCY/ ^
OrFEKs'ii/lNTSRSTSTE TPjJiSP STOLS; VEH-EYER ACT DISP/CONVICTED
C0I!FINEb/60M F1KE/52O0O OTHER/INDETEPJ-!
CUSIOEY- AGCY/IN USP TERRE HAUTE
A late/o;o269 STATOS/RECEIVED
AGCY/Iil USP TERRE HAUTE
B DATE/0l*227i STATUS/PAROLED
CYCLE 2-
AFJ^ST- AGCY/-JS !:;.;;£HALL LOUISVILLE KY STATE ID/F0922l>3 NAME USET/DOE, JM DATE ARR/053071
ou.^r.L. NC/C1
CFrijISE/flOEEEBY-BANKIKa-Ti'PE INST
ClL'.r.CE NO/02
CFFENSE/PAROLS VIOLATION
COURT- ACCY/
COUI.'T N0/C1
OFFSlSE/liCSBEnY-BANKIHG-TYPE INST DISP/CONVICTED
C0HrIHED/120M OTKER/RBl' PAR VIO CONC W/THIS CHG
CUSTODY- AGCY/IIl USP TERRE PXJTE
A DATE/110371 STATUS/RiXEIVED
SIS
OFFICIAL USE ONLY - ARREST DATA BASED ON
riNGERPfllKT IDEIITIFICATIOH BY SUBMITTING A'^''.''T OR FBI
SIMULATED NATIONAL CRIME INFORMATION CENTER
SUMMARY RECORD
"FBI l'dentC{Tcr2tion"Nur.iScr_ 'pp'\<^. °r^'B'±'^l.
NCIC Sm,IMARY MULTIPLE _STA.TE FBI/123'' 5eq__01/23/73
~EM?7TVi^~ y'^, .Dilc^oriArih; Height Wei'^W Eye Color
""EH-C DOE, JOHN M W FL DOb7o92243 HGT/'507 WGT/160 EYE/BRO
KAI/BRO FPC/200610CP 1012050309 10 SMT/SC R HND, SC^CHIN
'liair Color fingerprint Cl.if sLficatioji (ScarsTighl hand, chin)
,C6mMENT/ARMD-DANG- Armcci-pan:iic73^ '
Addili'onarComnicMil Fk'ld Rer.i.on for_Criu'li£n
TOTAL ARRESTS - 2
Offense Charges Convictions
Sto'en vehicle- -
Weapon offenses
Robbery
Parole violation
1
1
1
0
1
1
1
0
249
LAST ARREST STATUS (INCLUDED ABOVE) -■
Pate La?; Arrcsl "Arresti:ia Ai^ciicy (tjs Marshal)
053071 USM LOUISVILLE KY
~ArreFt C^'arpc N\;n-jrcr2_
01 ROBBERY-BANKING-TYPE INST
Arrest Offenses
02 PAROLE VIOLATION
_ _ COURT STATUS (INCLUDED ABOVE) - ^_
Court Ccuni N'.. ^K-r touiVO.'io.nse TTouftlDTsposTuoa
'01 J^OEBERY-BANKING-XTPg.fijST-CONv'lCTED
Confuieinciu-IIK) Montli; ,Ollior_ Scnlcnce Provisioiis-Ketunicd aTpnrolc^iolalor
CONFINE/120rvI OTHER/RET FAR VIO CONC W/THIS CKG
Coiicurrenl willi Uiis Cliart;e
CUSTODY_STATUS-__
_Cuj>Uidy urijjpcrvi.Moii Av.ency t)ate rteccJvccT Cusiody_pr SuDcrvisionStatus^
IN US.P TERRE HAUTE 110371 RECEIVED
(\jS_rciiili;rUiaryJ
^d oIRccord
Federal Bureau of Investigation National Crime Information Center,
Interstate Exchange of Computerized Criminal Histories Agreement
The National Crime Information Center of the FBI, hereinafter called NCIC,
agrees to furnish to , a criminal justice agenc)^ serving
as a control terminal agency in the NCIC system such criminal history informa-
tion as is available in NCIC files subject to the following provisions.
agrees to abide by all present rules, policies, and
procedures of the NCIC as approved by the NCIC Advisory Policy Board as well
as any rules, policies, and procedures hereinafter approved by the NCIC Advisory
Policy Board and adopted by the NCIC.
NCIC reserves the right to immediately suspend furnishing criminal history
data to when either the security or dissemination
requirements approved by the NCIC Advisory Policy Board and adopted by the
NCIC are violated. NCIC may reinstate the furnishing of criminal historj- data
in such instance upon receipt of satisfactory assurances that such violation has
been corrected.
Either NCIC or niay, upon 30 days notice in
writing, discontinue service.
agrees to indemnify and save harmless the Federal
Bureau of Investigation, its Director and employees from and against any and all
claims, demands, actions, suits, and proceedings b}' others; against all liability to
others, including but not limited to any liability for damages by reason of or
arising out of any false arrest or imprisonment or an_y cause of action whatsoever,
and against any loss, cost, expense, and damage resulting therefrom, arising out
of or involving any negligence on the part of in the
exercise or enjoyment of this Agreement.
This Agreement will become effective on
In witness whereof, tlae parties hereto caused this agreement to be executed by
the proper officers and officials.
FEDERAL BUREAU OF INVESTI- NCIC CONTROL TERMINAL
GATION NATIONAL CRIME IN- AGENCY:
FORMATION CENTER:
nv
By
Title: Acting Director. Title .
Date Date
250
LEADS — Rules and Regulations
To assure the continued proper functioning of the Ohio LEADS, each agency
signing an agreement for LEADS services shall conform to the following rules and
regulations duly agreed upon in regular session by the Ohio LEADS Steering
Committee. Each agency further agrees to abide by whatever actions the Steering
Committee shall decide to take as a result of violations of these rules and
regulations.
Failure to comi)ly with the rules and regulations maj" result in the order of
terminal suspension bj' the Steering Committee.
SECTION I GENERAL
(1.1) LEADS terminal agencies shall meet all monetary obligations to the
terminal vendor.
(1.2) Suggestions, tips, or other pertinent instructions listed in the manual,
newsletter, or bulletins will have the same effect as rules or regulations wherein
that effect may be reasonably applied.
(1.3) Rules and regulations of the National Crime Information Center or that
of any other data or message switching sj^stem, when i^rooerly disseminated, will
have the same weight as the rules and regulations of LEADS.
(1.4) LEADS operators, supervisors or agencj'' heads shall cooperate with any
efforts of the Steering Committee, or persons authorized to act in their name, in
actions, investigations, or efforts to improve the system.
(1.5) LEADS manuals, NCIC manuals, or other authorized printed materials
necessary to the proper functioning of a terminal shall be maintained in an up-to-
date condition readily accessible to those persons charged with terminal operation
or control.
(1.6) Operational instructions from LEADS Control will have the same effect
as orders from the Steering Committee.
(1.7) LEADS terminals shall not be changed in any manner or moved from the
installed position without permission of the Steering Committee or persons em-
powered to act in their behalf. Anj^ relocation charge shall be at the expense of
the user.
(1.8) LEADS terminal agencies shall be responsible for assuring the original
and continuing training of all persons whom they authorize to operate their
terminal.
(1.9) Each terminal agenc}^ will make every reasonable effort to acquaint the
enforcement personnel of their agency with the capabilities, rules, regulations, and
services offered by LEADS.
(1.10) Each LEADS terminal agencj^ shall designate one person as LEADS
Terminal Supervisor for purposes of supervision, training, and control of their
terminal.
SECTION II OPERATIONAL
(2.1) Data stored in LEADS, NCIC, or other interfaced system shall be re-
stricted to the use of duly authorized law enforcement personnel and shall not be
sold, transmitted, or disseminated to any non-lftw enforcement agency or person.
(2.2) LEADS message switching shall not be used for personal communication
between operators.
(2.3) Procedures for entry, inquiry, and message switching as outlined in the
LEADS manual shall be adhered to.
(2.4) Messages, entries or inquiries for a non-terminal law enforcement agency
should be handled by a terminal user upon request. Any formal or informal
agreement made between a terminal agency and non-terminal agencies, for the
purpose of this rule, shall be filed with the LEADS Steering Committee.
(2.5) LEADS terminal agencies shall validate entries by that terminal as often
as necessary. Invalid entries will be removed as soon as possible.
(2.6) LEADS terminal agencies shall correctly maintain equipment leased to it,
and shall notify the equipment contractor as soon as a malfunction is noted.
(2.7) Each terminal agency shall make every reasonable effort to assure
accuracy, completeness, and conciseness of all messages transmitted.
(2.8) Each terminal user shall make every reasonable effort to promptly respond
to messages requiring a reply directed to their terminal.
(2.9) ALLTERM and Quadrant messages will be strictly controlled to assure
that only those messages reasonably meeting statewide or area law enforcement
needs wiU be transmitted.
251
(2.10) LEADS terminals shall not be turned off, unplugged, or rendered in-
operative in any manner unless such action has been authorized b}^ LEADS
Control or tlie equij^ment contractor.
These rules and regulations were adopted at the regular meeting of the LEADS
Steering Committee, December 16, 1969.
Exchange of Criminal Justice Information Agreement
THIS AGREEMENT, entered into this day of , 19-., by
and between the Georgia Department of Public Safety (Georgia Crime Informa-
tion Center), hereinafter sometimes referred to as GCIC, and
hereinafter sometimes referred to as Customer.
GCIC agrees to furnish to Customer, a criminal justice agency vt'ithin the
State of Georgia, such criminal history, NCIC, and Georgia Law Enforcement
System information as is available to GCIC, subject to the following conditions.
Customer agrees to abide by all rules, policies, and procedures novv or hereafter
established by the National Crime Information Center of the Federal Bureau of
Investigation (NCIC) and by GCIC.
Customer agrees and acknowledges that its access terminal location and security,
and its computer system configuration are subject to approval by and will conforin
to continuing requirements established Ijy NCIC and GCIC. Customer agrees
to notify GCIC at least thirty (30) minutes prior to the performance of any
maintenance upon Customer's access terminal by any person v/ho is not a member
of Customer's staff authorized to operate the tei-minal; Customer agrees and
acknowledges that its access terminal will be placed in a restrictive mode during
such maintenance by such unauthorized personnel.
GCIC reserves the right to terminate Customer's access to criminal history/data
without notice to the Customer, at any time it may appear to GCIC that any
security or dissemination requirement of NCIC or GCIC has been violated.
GCIC may thereafter reinstate Customer's access upon receipt of satisfactoiy
assurances that such violation has been corrected. Customer agrees and acknowl-
edges that its computer system use and configuration will be continuously mon-
itored by a GCIC command terminal.
Either GCIC or Customer may, upon thirty (30) days written notice to the
other, discontinue service under this Agreement.
This Agreement will become effective , 19-..
In witness whereof, the parties hereto have executed this Agreement on the
date first above written.
Customer Georgia Department of Public Safety
(Georgia Crime Information Center)
By By
Title Title
Date Date
Law Enforcement Information Network — Computerized Criminal History
Participation Agreement
(LEIN/NCIC)
The National Crime Information Network of the FBI, hereinafter called NCIC,
agrees to furnish to , a criminal justice agency,
Agency
through the Michigan Law Enforcement Information Network (LEIN), criminal
history information as is available in NCIC files, subject to the following Pro-
visions:
, agrees to abide by all iDresent rules, policies, and
Agency
procedures of LEIN and NCIC as appr-oved by the LEIN Advisory Committee
and the NCIC Advisory Polic.y Board, as well as any rules, policies, and procedures
hereinafter approved and adopted by these respective groups.
LEIN reserves the right to immediatelj" suspend furnishing criminal history
data to the aforementioned criminal justice agency when either the security or
252
dissemination requirements approved and adopted by the LEIN Advisory Com-
mittee or the NCIC Advisory Policy Board are violated. LEIN may reinstate
the furnishing of criminal history data in such instance upon receipt of satisfactor}'
assurances that such violation has been corrected.
, agrees to indemnify and save harmless the Law
Agency
Enforcement Information Network and its officials and employees from and
against any and all claims, demands, actions, suits, and proceedings by others,
against all iiabilitj' to others, including but not limited to any liability for damages
by reason of or arising out of any false arrest or imprisonment, or anj^ cause
of action whatsoever, and against any loss, cost, expense, and damage result-
ing therefrom, arising out of or involving any negligence on the part of
, in the exercise of enjoyment of this agreement.
Agency
This agreement will become effective upon the confirming signature of the
Director of the Michigan State Police.
In witness whereof, the ]5arties hereto caused this agreement to be executed
by the proper officers and officials.
Law Enforcement Information Network
BY AGENCY
Signature BY
TITLE Director, Department of State Signature
Police TITLE
DATE DATE
Senator Mathias. Now, in appendix D, under the section entitled
"Additional Changes in FBI Policies and Procedures," j^ou list 32
changes. Only three of these, I think, relate directly to the information
retention; No. 12, Avhich you referred to, purged inactive arrest
records of individuals age 80 and older from the fingerprint files.
No. 28 discontinued the program of gathering biographical data on
nonincumbent congressional candidates, and No. 31 discontinued
the compilation of statistics on the recovery of stolen motor vehicles
which were transported in interstate commerce, unless the vehicle
was recovered specificall}^ as a result of FBI investigative efforts.
Now, I would suggest that these are all steps in the right du"ection,
but I am wondering if they are all the changes in this particular area
that have been made and whether you could provide us with a more
complete list, if there are additional items in this area, and particularly
with the changes that relate to the NCIC, and to the facilities that
relate to NCIC?
Mr. Gray. The only other one that I can think of quickly and off-
hand is that requiring weekly reports of any serials — that is papers,
individual papers — that are legitimately charged out of our files. The
reason for that is once again my concern for dissemination and access
and that sort of thing. I did state earUer today, Senator Mathias,
that we do have a rather good records management program in the
FBI, and I v/ould submit information for the record concerning that,
but I will take a look and see v\-hat other things we have done. We
tried to hit just the highlights here. We did not list all the changes.
Some of them are not even listed here.
Senator Mathias. That is why I raised the point, because I won-
dered whether this was a comprehensive list.
Mr. Gray. No, it is not. In fact, the changes that have been made
in the organized crime area, for example, regarding strategy and
tactics, are not in here, and I would not list them at all in any com-
pilation. We have made substantial changes in that area.
Senator Mathias. If you can advise the committee to the fullest
extent possible of those changes, I think it is important.
253
Mr. Gray. Yes, sir.
(Mr. Gray subsequently submitted the follomng document for the
record :)
Mr. Gray. I have previously supplied to the Committee a background, con-
cept and policy paper dated September 20, 1972, which sets out detailed standards
concerning the operation of the NCIC and the computerized criminal history
program. From May 3, 1972, to date, the following changes have occurred with
respect to the policy of the NCIC:
One requirement adopted by the NCIC Advisory Policy Board in March, 1971,
and approved bj^ the Attorney General in June, 1971, was that all computers
capable of interfacing directly with the NCIC computer for the interstate exchange
of criminal history information must be under the management control of a
criminal justice agency authorized as a control terminal agency. Subsequently, as
the development of state computer systems progressed, it became evident that
some states preferred to place responsibility for computerized operations in other
than a criminal justice agency. In order to allow participation in the criminal his-
tory program by those states wherein the computer is not under the direct control
of a criminal justice agency, the NCIC Advisory Policy Board on September 20,
1972, adopted the following policy which is in effect at the present time:
"In those instances where criminal justice agencies are utilizing equiimaent and
personnel of a noncriminal justice agency for NCIC/CCII purposes, the following
criteria will apply in meeting the above management control provisions :
1. The hardware, including processor, commimications control, and storage
devices, to be utilized for the handling of cruninal history data must be dedicated
to the criminal justice function.
2. The criminal justice agency must exercise management control with regard
to the operating of the aforementioned equipment bj^:
a. having a written agreement with the noncriminal justice agencj^ operating
the data center providing the criminal justice agency authority to select and
supervise personnel,
b. having the authority to set and enforce policy concerning computer opera-
tions, and
c. having budgetary control with regard to personnel and equipment, in the
criminal justice agency.
Further, the original policy paper of NCIC designated the types of agencies,
such as the police, prosecutive departments, the courts, and correctional institu-
tions that could directly access the NCIC/CCH File. No allowance was made
for a state agency which had as its function the operation of an information
system for the state's criminal justice agencies. Thus, it became necessary for
the NCIC Advisory Policy Board to consider the matter of whether such a state
agency would be able to have direct access to the criminal history mformation
contained in NCIC. After consideration, on September 20, 1972, the Board
broadened the category of agencies that can access NCIC for criminal history
data to include:
"State control terminal agencies which have as a sole function bj^ statute the
development and operation of a criminal justice information s^'stem."
The policy of the NCIC, before it was amended September 20, 1972, provided
that criminal history data on an individual from the national computerized file
would be made available outside the Federal Government onlj^ to criminal
justice agencies for criminal justice purposes. This precluded the dissemination
of such data for use in connection with licensing and local or state employment
other than with a criminal justice agency. The policy specifically stated, "There
are no exceptions pending legislative action at state and Federal level or Attorney'
General regulations."
Public Law 92-184, approved December 15, 1971, provided for the exchange
of identification records, as authorized by state statutes and approved by the
Attorney General, with officials of state and local governments for purposes of
employment and licensing.
By reason of the passage of Public Law 92-184, this particular section of the
NCIC policy paper was amended to read as follows:
"Criminal history data on an individual from the national computerized file
will be made available outside the Federal government to criminal justice agencies
for criminal justice purposes. This precludes the dissemination of such data for
use in connection with licensing or local or state employment, other than with a
criminal justice agency, or for other uses unless such dissemination is pursuant to
state and Federal statutes. There are no exceptions."
91-331—73 -17
254
Senator Mathias. Finally, Mr. Gray, there was a study published
by the Lawyers Committee for Ci^dl Rights Under Law, entitled
"Law and Disorder: State and Federal Performance Under Title I of
the Omnibus Crime Control and Safe Streets Act of 1968." In chapter
2 of that publication, there are some comments and a series of recom-
mendations and conclusions on the subject of Computerized Criminal
Information and Intelligence Systems."
In calling attention to this article, I do not necessarily endorse all
of the recommendations, but I think they are worth looking at and
evaluating, and I am wondering if you would take a look at those
recommendations and let the committee have your comment on
them.
Mr. Gray. Senator, I would like to say that we are alert to these
kinds of things because all too frequently we find — and this, once
again may be due to our fault because Vv'e have not opened the win-
dows— that there exists a paucity of information, so that these reports
get off on the wrong track.
Senator Mathias. This is a good opportunity to put that record
straight. That is the reason I am asking these questions.
Mr. Gray. I know it, and we are happy to do it. As a matter of
fact, Senator ^Mathias, we have been working on analyzing this
particular report in our Computer Systems Division. We will suppl}'
the analysis to the committee.
Senator Mathias. I will ask unanimous consent, for the purpose
of keeping the record straight, that chapter 2 of this study be inserted
in the record at this point and that Mr. Gray be allowed to suppl}^
his comments on it for the record at this point.
Senator Bayh (presiding). Without objection.
(The document referred to follows :)
Chapter II — Computerized Criminal Information and Intelligence
Systems
FROM "law and disorder: state and federal performance under title I
OF THE omnibus CRIME CONTROL AND SAFE STREETS ACT OF 1968", PREPARED
BY THE lawyers' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, 1973
The application of computer technology to criminal justice information systems
was recommended by the President's Crime Commission as an important tool for
improving the deployment of criminal justice resources and for keeping track of
criminal offenders. The commission warned, however, that special precautionary
steps would have to be taken to protect individual rights and recommended that
primary control of computerized information systems be retained at the state
and local levels to avoid the development of a centralized file subject to Executive
manipulation.
LEAA has effectively concentrated a variety of resources, including research,
discretionary and block grants, in the development of computerized information
and intelligence sj^stems. It has not, however, given adequate attention to the
warnings of the Crime Commission or demonstrated adequate appreciation of the
consequences of a massive accuinulation of personal dossiers at the national level.
Millions of dollars of Institute and discretionary grants have supported the
creation of a national computerized file of criminal histories that is fed by LEAA
block grant-funded state information systems. The initial design of the system
followed the decentralized model recommended by the Crime Commission, but
in January 1970, former Attornej^ General John iST. Mitchell decided — over the
objections of LEAA — to make the system a more centralized one. To accomplish
this purpose, he transferred the file system from LEAA to the FBI.
LEAA has simultaneously given the states substantial grants to create intelli-
gence systems directed primarily toward organized crime, civil disorders and the
activities of dissenters. (See Chapters I and IV.) ^ Some of these files are being
maintained by the same agencies that operate the more reliable information files,
I See also Chapter III, describing the new kinds of intelligence and monitoring devices that LEAA grants
have purchased.
255
creating the possibility that the two will be used jointl3^ At the federal level the
Attorney General has the power to combine intelligence with information files, but
he apparently has not exercised that power, on a regular basis.
All of this has occurred without broad public policy debate about the desirability
of the new systems and with little serious effort to determine whether the contri-
bution they make to controlling crime outweighs their potential for eroding privacy
and individual autonomy, or whether that potential can be reduced or controlled,
LEAA's investment in information and intelligence systems must be placed in
the context of the over-all Justice Department strategy for strengthening the law
enforcement capability of the federal government and for building up the
powers of police and i^rosecutors at all levels. During his tenure as Attorney Gen-
eral (1968-72) John N. Mitchell made it clear that these were major goals of his
administration. To this end he greatly expanded federal surveillance of citizens
thought to be threats to internal security, justifying his action on the theory that
the Executive has inherent and discretionary power to protect itself.^ He made
aggressive use of existing laws, and sought and obtained significant new legislation
to arm police and prosecutors with expanded authority to monitor individual con-
duct in order to prevent or punish potential crimes.^ These developments, when
viewed in conjunction with the new surveillance technology funded by LEAA
grants and the national computerized file on criminal offenders, greatly increase the
capability of the government to monitor the activities of all citizens and to step in
to prevent or punish those activities where it chooses to do so.*
The new criminal justice information network can be used in conjunction with
the vast government and private computer dossiers being compiled by credit
bureaus, insurance companies, welfare agencies, mental health units and others.*
Cumulatively, these files threaten an "information tyranny" that could lock each
citizen into his past; they signal the end of a uniquely American promise — that
the individual can shed past mistakes and entanglements, and start out anew.
There are no federal and few state laws regulating the national criminal infor-
mation system or its components. Few laws control the host of related public and
private information systems. And any constitutional protections that exist are
limited and narrowly defined.^ Without controls, the sj^stems continue to evolv^e
primarily by force of their own momentum. In part through the well-meaning
actions of LEAA the prophecy of Dr. Jerome Wiesner, MIT president, is being
realized:
Such a depersonalizing state of affairs could occur without overt decisions, without
high-level encouragement or support and totally independent of malicious intent. The
great danger is that we could become information bound, because each step in the
development of an information tyranny appeared to be constructive and usefulJ
2 See the statement of William H. Rehnquist, Hearings on Federal Data Banks, Computers and the Bill of
Rinhts, Senate Subcommittee on Constitutional Rights, 92nd Congress, 1st Session (February-March 1971)
p. .597, et. seq., March 11, 1971. (Referred to hereafter as Senate Constitiitionil Rights Subcommittee Hearings.)
The Supreme Court rejected the argument that warrantless wiretapping is pennissible. in United States v.
United States District Court, _ U.S. _, 40 U.S.L.W. 4761 (1972).
3 For example, under Mitchell's leadership the Justice Department implemented Titles II (expanding
federal wiretapping powers) and III (weakening the strict exclusionary rules developed after the Supreme
Court's ruling in Mirandi v. Arizona) of the Safe Streets Act of 1933. In addition the depvtment has sought
and obtained new legi'^lation such m the D.C. Crira • Bill, the Organized Crime Act of 1970 and the Compre-
hensive Drug Abuse Prevention and Control Act of 1970, which greatly expanded federal law enforcement
powers. These three bills include a number of provisions of dubious constitutionality, such 'as authority for
preventive detention of suspects, for police to enter homes v.-ithout warning ("no-knock"), for courts to
impose greatly expanded sentences for "dangerous special offenders," and for grand juries to function with
increased powers.
< A recent f^^deral court ruling on another matter describes the congressional intent not to create a national
police force through the LEAA program, in Ely v. Velde, 451 F.2d 1131, at 1136 (4th Cir. 1972), the court
stated: "The dominant concern of Congress apparently was to guard against any tendency toward federal-
ization of local police and law enforcement agencies." Congress feared that "overbroad federal control of
state law enforcement could result in the creation of an Orwellian 'federal police force.' . . . The legislative
history reflects the congressional purpose to shield the routine operations of local police forces from ongoing
control by LEAA— a control which conceivably could turn tlie local police into an arm of the federal
government."
6 The courts can and do protect individuals' constitutional rights when they are specifically threatened by
overt government action. But judicial intervention is, by nature, episodic and primarily remedial rather
than preventive. Until government overreaching ripens into concrete, demonstrable injury — such as the use
of illegal evidence at trial, the loss of employment or the disbanding of a political organization — the courts
wiU not recognize that it is harmful. See, for example, Laird v. Tatum, U.S. . 40 U.S.L.W. 4850 (.Tune
26, 1972). rejecting a claim that military surveillance of persons involved in domestic political activities
violates the Constitution.
' In many ways these data banks are far more threatening than those maintained by criminal justice
agencies. "The over-all problem of computers and privacy is well presented in Miller, Assault on Privacy:
Computers, Data Banks and Dossiers (1972). and in the hearings cited above, n. 2.
' Senate Constitutional Rights Subcommittee Hearings, March 11, 1971, p. 671.
256
Computerized criminal history files
When the LEAA program began, a few states had established centralized files
of criminal offender histories to assist police departments in the identification
and prosecution of suspects. For example, New York State's Identification and
Intelligence System (NYIIS), operating on an annual budget in excess of $5
million, had more than two or three million fingerprints and 500,000 summary
criminal histories on its computer. ^ Additional fingerprints and criminal histories
existed in manual files. Included in both the files were "criminal wanteds" for
felonies and misdemeanors, escapees from penal institutions, parole and probation
absconders, elopees from mental institutions and missing persons. More than
3,600 local law enforcement agencies submitted information to the files and used
them to check out suspects and new arrests. Other states, such as California,
Michigan and Florida, were developing systems, but for the most part centralized,
computerized recordkeeping was rudimentary. The extent to which the state files
expedited or otherwise improved law enforcement had not been demonstrated.
At the national level the FBI maintained the National Crime Information
Center (NCIC). This system operated through local law enforcement control
terminals (as of early 1972 there were 102 terminals, of which 48 were com-
puterized) that put the FBI in direct touch with approximately 4,000 of the
nation's 40,000 local law enforcement agencies. NCIC cost about $2.3 million per
year to operate. The system contained files on stolen items, such as vehicles,
firearms, boats and securities, and on wanted persons. Of the 3.1 million NCIC
files, only about 300,000 were active criminal offender records. On an average,
the NCIC system found a record or produced a "hit" on about 6 percent of the
queries it received from local agencies (some estimates have been as low as 2
percent). In addition to the NCIC system, the FBI maintained more than 190
million identification and fingerprint files and approximately 20 million criminal
offender records in permanent manual files.
Federal, state and local law enforcement agencies all contributed information
to and could extract information from the NCIC files. In addition, NCIC records
wei"e searched as part of the identification service that the FBI provides for agen-
cies of federal and state governments and other authorized institutions, including
hospitals and national banks, which seek information on an individual's arrest
record for purposes of employment clearances and licensing. »
Today it is clear the NCIC and the few systems such as NYIIS were relatively
primitive, first generation data banks. In the past three years, with the investment
of more than $50 million in Institute, discretionary and block grant funds, LEAA
has launched a program that by 1975 promises computerized criminal history files
kept bj^ all 50 states that will be tied in to ("interfaced with") a massive national
file run by the FBI. The states will place in the central FBI file only information
of public record pertaining to people who have been accused of "serious and other
significant violations." The central file will consist of comprehensive histories of
persons who violate federal laws or who commit crimes in more than one state
and summary histories on offenders who have been involved solely in intrastate
crimes.^" Anj^ authorized inquirers '^ will have access to the central records, and
will be referred to the relevant state files for further information. The individual
state systems will include whatever information or intelligence the states choose
to put into them and will be accessible on terms defined by each state.
This ambitious centralized program developed out of the System for Electronic
Analysis and Retrieval of Criminal Histories (Project SEARCH), a $16-million
demonstration ]Droject supported by LEAA discretionary and Institute grants, in
9 NYIIS performs a variety of functions in regard to this data: fingerprint processing (not yet computer-
ized), name searching, wanted system (NCIC interface), personal appearance/arrestee file searches and re-
view of latent fingerprinting material. (NYIIS Fact Sheet)
' Executive Order 10450 (April 1953) calls for an investigation of any individual appointed "in any depart-
ment or agency of the government," and provides that "in no event shall the investigation include less than
a national agency check (including a check of the fingerprint files of the FBI), and written inquiries to
appropriate local law enforcement agencies . . . ." In Menard v. Mitchell, 328 F. Supp. 718 (D.D.C. 1971),
the court suggested the Executive Order should be reexamined, hut refused to enjoin the use of NCIC for
this purpose. The court did preclude the distribution of arrest records except for law enforcement and
federal employment purposes, but Congress overruled this exclusion in approving the FBI's 1972 appro-
priation. (See n. 29, infra.)
'0 Summary criminal histories contain public record information such as fingerprints (where available),
personal description, arrests, charges, dates and places of arrest, arresting agencies, court dispositions,
sentences, limited institutional data and limited information concerning parole and probation.
II "Authorized inquirers" include any agency that now participates in the FBI's system, plus any agency
subsequently permitted to do so by the Attorney General.
257
which 20 states shared criminal histories through a computerized central data
index. 12 SEAP^CH was intended as a prototype for a national computer jfile which
would facilitate prompt apprehension of interstate felons. i^
The project was funded through the California Council on Criminal Justice.
Primary developmental responsibility was contracted to Public Systems Inc.
(PSI), a research and development firm based in San Jose.^* PSI was aided by task
forces and advisory committees composed of representatives from the participating
states. The major assignment of the SEAP^CH group was to develop standard,
computerized criminal history records, summaries of which could be filed in a
central index. Computer terminals in the individual states could submit informa-
tion to the ce ntral index and query it for identification of suspects. If the central
index contained matching references concerning the subject of a query, the sum-
mary index d ata was transmitted to the inquiring police officer and he was told
which state had the full file on the suspect. The officer could then request and
obtain a copy of the suspect's full record via teletype from the state agency. The
initial focus of the system — like its predecessors — was on police requirements;
but the project design anticipated subsequent development of a capability to
service the information needs of courts and corrections officials as well.^^
On March 9, 1971, LEA A Associate Administrator Puchard W. Velde testified
before the Senate Subcomunittee on Constitutional Rights that:
The basic problems facing SEARCH in the demonstration period have been solved.
A common format for criminal histories was developed, and in machine-readable
form. Each active participant converted at least 10,000 felony records to the SEARCH
'syslem- for the demonstration. As the test period showed, a state making an inquiry
of the central index with perhaps no more information than a driver's license number
could find out if that person were in the {national) index and then be switched to the
stale holding the complete criminal history. It takes merely seconds to do all of that
and receive the infonnation.^^^
Com]3uter experts were less sanguine about the success of the experiment. Some
noted that only a small number of the SEARCH states had actually participated
in the demonstration and suggested that the test simply duplicated what the
FBI's NCIC had already demonstrated. Datamation magazine reported on the
SEARCH demonstration as follows:
Ten states officially participated in the demonstration, but only N'ew York made
any extensive operational uses of the syste?7i, and a total of only five states conducted
any demonstrations. . . . SEARCH met its demonstration objectives from- a conceptual
point of view, but did not achieve much operational success, because of design com-
promises, lack of updating capability for the central index and failure to develop
record formats acceptable to all users, among other reasons. ^^
Despite these criticisms, and over the protests of LEAA Director Jerris Leonard
and the states that had participated in the project, SEARCH became the launching
pad for an expanded and "improved" criminal offender system to be operated by
the FBI. Transfer of svstem control to the FBI meant that, instead of a network
of state-controlled file's tied into a limited central index, the SEARCH system
became a national file run by a line operating agency. More importantly, judging
from the debate on the subject that raged for months, FBI control meant dimin-
ished operational standards for the system's integrity, and attenuation of safe-
guards for individual privacj^.
12 The states participating in the SEARCH experiment were Arkansas, Arizona, California, Colorado,
Connecticut, Florida, Georgia, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, New-
Jersey, New York, Ohio, Pemisvlvania, Texas, Utah and Washington.
13 As tlie FBI put it: "The purpose of centralization . . . is to contend with increasing criminal mobihty.'
(NCIC Advisory Board, "Computerized History Program: Background, Concepts and Policy," as ap-
proved March 3l', 1971, and amended Aug. 31, 1971). FBI data show that 25 percent of arrests involve inter-
state movement by felons. A preliminary survey by SEARCH put the figui-e at around 27 percent but
estimated that most of these arrests were in contiguous states.
14 Eight of PSI's key personnel are from Svlvania Sociosystems Lab (a research and development arm of
G TE Sylvania) , and one is the fomier head of California's SPA, the California Council on Criminal J ustice.
15 We disagree with LEAA's assumption that across-the-board increases in offender data are desirable for
all decision-making processes within the criminal justice system. For example, ai-rest records not followed by
convictions or juvenile offenses probably should not be nrade available to sentencing judges or to parole
boards. LEAA recently made a grant to the Federal Judicial Center to finance the transfer of all data proc-
essed through the federal coui'ts to the Justice Department. Sen. Ervin has questioned the propriety of this
arrangement under the separation of powers principle. (Letter of July 27, 1972, from Sen. Ervin to the Hon.
Alfred P. Mm-rah, Federal Judicial Center.)
19 Senate Constitutional Rights Subcommittee Hearings, p. 611.
!■ Phil Hirsch, Datamation magazine, June 15, 1971, pp. 28-31.
258
The conflict between the FBI and the Project SEARCH group had emerged in
May 1970. In a letter dated May 8, 1970, Jerome J. Daunt, then director of the
FBI's NCIC s.ystem, wrote to the SEARCH group complaining about various
recommendations in the Interim Report of the SEARCH Committee on Security
and Privacy. Among other items, the letter stated:
Throughout the report Project SEARCH is described as an ongoing system. Future
developments of this system are not the proper objectives of the Project SEARCH
group. . . .
In view of the limited purpose of the Project SEARCH, further studies in the area
of privacy and security are not justified. If there is a need, it should be done by some
other body.
The conflict became more pointed. In a letter of Oct. 15, 1970, John F. X. Irving,
then chairman of the state planning agency's executive committee, wrote to
Attorney General Mitchell protesting the proposed transfer of control over the
SEARCH system to the FBI as well as certain "changes in direction" of the
system. Irving complained that duplication would result because the states
intended to continue developing their own systems '^ and protested that the
FBI's plan to focus on data useful to the police only ignored the needs of courts
and corrections agencies. Irving also argued that the FBI system, by dealing
directly with city police departments instead of going through the states, would
subvert the federal-state relationship contemplated by the Safe Streets Act.
The strongest protest in Irving's letter was directed to the potential invasions
of privacA' inherent in a federal information system.
Last, but certainly not least, the FBI's proposed file is significantly different in
both conception and content from the state-held files contemplated by Project SEARCH.
The basic underlying concept of Project SEARCH is that no new national data
banks or criminal history files should be created because of the inherent threats to
individual privacy and the security of records. The Project SEARCH operating
concept is state-hild files with a national index or directory of offenders. . . . The
FBI file, on the other hand, would contain as much detailed data on offenders as the
FBI was v)illing and able to collect. It is not a true index but rathei a federal data
bank on offenders.
The FBI countered that expanding SEARCH as a state-dominated system
would increase the over-all costs and would duplicate the NCIC s\stem. More
importantly, a system subject to the control of 50 state executives could be abused
too easily. As Jerome Daunt put it: "If the governor controlled the system, he
could control who gets elected."
The protests bj' the states and b.y Jerris Leonard were to no avail. The FBI
took control of the SEARCH index in December 1970. The decision was John
JMitchell's. In November 1971 the bureau notified the press that:
The Federal Bureau of Investigation has begun operation of a computerized criminal
history data bank that eventually will give police almost instantaneous access to an
individual's criminal arrest record from all 50 states and some federal investigative
agencies and the courts. . . . The system . . . will make available by 1976 on a
nationwide computer network most of the information now handled through the FBI's
vast criminal record and fingerprint files. . . . It replaces a pilot effort, called Proj-
ect SEARCH, in which only a computerized index was maintained, capable of telling
police if a suspect had a record.^^
Although the November 1971 announcement signaled the end of LEAA control
of the system, the agency has continued to be involved in the development and
expansion of information systems. Project SEARCH has been given discretionary
and research grants for developing related technology, such as satellite transmis-
sion of information, automatic fingerprint identification/ verification and additional
work on transaction-based criminal justice statistics. And LEAA block grants
have continued to serve as the primary source of funding for the state information
systems that will be the major components of the NCIC criminal history infor-
mation sj'stem. Despite LEAA's expressed concern for privacy considerations in
the operation of information systems, it has not sought to precondition the use
of its funds for such systems on the development by the states of adequate statu-
tory or regulatory safeguards.
" By altering the basic system design for SEARCH, FBI requirements could increase the cost by 30 to
40 percent, apart from the possible duplication involved. Inlei 7iew with Jerry Emm.er, LEAA official.
i» Justice Department news release, November 1971.
259
It is difficult to obtain reliable information concerning the present or projected
scope, cost or structure of the new FBI data bank. At the federal level a variety
of agencies are scheduled to participate in the system, most of which have been
previously active in the NCIC system. Among others, the system will receive
data and answer inquiries from the Secret Service, the Internal Revenue Service,
the Alcohol and Tax Division of the Treasury Department, the Bureau of Customs,
the Immigration and Naturalization Service, the Bureau of Prisons, the U.S.
Courts, U.S. Attorneys and U.S. Marshals. As far as the states are concerned, at
the time of the FBI's November 1971 press release, only one state — Florida —
was actually contributing information to the file. The next two states — New York
and California — were not scheduled to participate until July 1972. (As Chapter
IV shows, California will probably not be ready for full participation until 1973.)
In most instances, the states do not have their own systems operational — or even
designed.
Official estimates of the total number of individuals who will eventually be
included in the national file range from five million (the FBI estimate) to 20
million or more (the LEAA estimate). The number of files in the total system
including all the state files will, of course, be much greater. Neither LEAA nor
the FBI will provide information on the total costs involved.
Nor is it clear whether the FBI's file will be comprehensive, or simply a summary
index that refers inquirers to the state files. The FBI has stated that it plans to
maintain complete files only on offenders who have been arrested in more than
one state, maintaining "summarj- files" on offenders who have been arrested
within a single state onl3^ State control centers will be able to add or remove
information from the national file. However, for those states that have not yet
built a central computerized information file, the FBI is presently maintaining
complete offender files in both situations. The fact that the agency is presently
maintaining complete files for all states makes it doubtful that they will subse-
quently abandon those files. ^^
The "kinds of information to be stored in the data file and the conditions of
participation in the system are not defined by statute or by formal regulations.
The only standards regulating the system are those set forth in the NCIC Ad-
visory Board policy paper. ^i Each state seeking to participate in the system must
sign a contract with the director of the FBI, agreeing to abide by the terms of
the policy paper and by any "rules, policies and procedures hereinafter adopted
by NCIC." The contracting state must also agree to indemnify the federal agency
against any legal claims arising out of the operation of the information system.
The FBI claims that the majority of the states — "all but three or four," according
to Daunt, "and those have technical not substantive problems with the sys-
tem"— have signed the contract and thereby accepted the terms of the policy
paper.
The NCIC standards are substantially less rigorous than those developed by
LEAA's Project SEARCH, and in many instances their adoption was met by
vigorous objections from LEAA, the SPAs and the Project SEARCH participants.
Under the NCIC pohcies, the national file is restricted to data on "serious and
other significant violations." This is defined by exclusion:
Excluded from the national index will he juvenile offenders as defined by state law
(unless the j-uvenile is tried in court as an adult); charges of drunkenness and/ or
vagrancy; certain public order offenses, i.e., disturbing the peace, curfew violations,
loitering, false fire alarm; traffic violations {except data will he stored on arrests for
manslaughter, driving under the influence of drugs or alcohol, and 'hit and run');
and nonspecific charges of suspicion or investigation.-^
2" The basic policies developed for the FBI system by the NCIC Advisory Policy Board state:
"111 the developed system, single state records will become an abbreviated criminal history record in the
national index with switching capabihty for the states to obtain the detailed record. Such an abbreviated
record should contain sufficient data to satisfy most inquiry needs, i.e., identification segment, originating
agency, charge data, disposition of each criterion oflense and current status. This wiU substantially reduce
storage costs and eliminate additional duplication."
21 The NCIC Policy Paper, supra n. 13. The boai'd is appointed by and serves at the discretion of the
director of the FBI. Its members are individutTJs responsible for the administration on state information
systems or state or local terminals on the NCIC system. Recently, procedures were introduced for electing
boai'd members from among pai"ticipating state officials. It does not include constitutional lawyers, computer
experts or other nonlaw enforcement representatives.
SI! NCIC Policy Paper, supra a. 18, p. 11.
260
Narcotic or mental commitment records will be maintained if they are part of
the criminal justice process. Domestic crimes such as nonsupport or adultery and
victimless crimes such as homosexuahty, gambling and others are considered
"serious" in some jurisdictions. -=* Moreover, any state or locality may store addi-
tional information in its own files, which can be disseminated upon requests
referred to the state or local poUce department by the central index.^^ Besides the
criminal record data on serious offenders, the Justice Department has asserted
an absolute right to keep records on persons who are "violence prone" and other
"persons of interest" for national security reasons.
Contributions to each individual file depend on participating state and local
agencies. According to the NCIC pohcy paper, each file is supposed to show arrests,
charges, the disposition of each case, sentencing details and custody and super-
vision status, but experience indicates that agencies contributing to the files
rarely remove arrests records that do not lead to convictions ^5 and often include
damaging extenuating information. Personal identification information such as
name, age, sex and physical description are included as well as FBI numbers,
state numbers, social security numbers, date and place of l^irth and other miscel-
laneous numbers. At least oiie criminal fingerprint card is filed in the FBI identi-
fication division "to support the computerized criminal history record in the
national index." ^^
No federal law or regulation calls for deletion of out-dated records. The NCIC
poHcy paper states: "Each control terminal agency shall follow the law or practice
of the state . . . with respect to purging/expunging of data entered by that
agency in the nationally stored data" (p. 12). Most states have no purging re-
quirements at present. The policy paper endorses the concept of state and federal
penalties for misuse of the data," and suggests that the individual be given the
right to see and correct his file, but makes no specific recommendations. Experience
at the state and local levels indicates that it is extremely difficult for an individual
to correct an erroneous or incomplete file without resorting to lengthy court
proceedings.
The major deficiencj^ in the guidelines and the system as a whole is the absence
of proper controls on access to the data contained in the files. The policy paper
states that access will be provided primarily to criminal justice agencies in the
discharge of their official responsibilities. In addition, "agencies at all govern-
mental levels which have as a princijial function the collection and provision of
fingerprint identification information" will have access, as will all those agencies
that presently use NCIC. This means that the files will still be used for clearing
federal emploj^ees and the employees of federal contractors,^^ and the information
23 HR 1, the welfare refoiin proposal which was extensively revised by the Senate Finance Committee
before the 92nd Congress adjourned, would make nonsupport a federal crime and place a special assistant
U.S. attorney in every judicial district to prosecute violators whose desertion caused their families to go on
welfare. This new crirne would assm-e that personal data files on welfare recipients will be mingled with the
flies on criminal offenders.
2< A number of jurisdictions maintain haiTnful, irrelevant data. The Kansas City, Mo., ALERT System,
for example, includes the following categories of information in its computerized Warrant/Want Real Time
Files: "local and national intelligence on parole status: active adult and juvenile arrest records with abstract
data: area dignitaries; persons with a history of mental disturbance; persons known to have confronted or
opposed law enforcement personnel in the perfomiance of their duty; college students known to have par-
ticipated in disturljances primarily on college campus areas." ("Statement of Sen. Charles Mathias, March 9,
197I, Senate Constitutional Righta Subcommittee Hearings, p. .576.)
25 The inclusion of arrest records that do not lead to conviction is particularly onerous. In 20 to 30 percent
of arrests, the police do not bring charges for a variety of reasons including mistaken identification, lack of
evidence, etc. Yet only eight states have statutes providing for expungement of such records. And of the
eight, only one allows expungement of arrest records for an individual who has had a previous conviction.
26 NCIC Policy Paper, supra n. 13.
2' At present the only penalty for misuse of data maintained in the NCIC system is the provision in 28
use § .534 allowing the FBI to withdraw the privilege of participating in the exchange system from an
agency that fails to abide by NCIC standards. As the exercise of that sanction means that the agency would
also cease contributing data to NCIC. the provision has been invoked rarely. 18 USC § 1905 provides weak
criminal sanctions for the disclosure of confidential financial infonnation by federal officials. It would not
extend to the state participants in the NCIC system, and it protects only white-collar criminals whose
offenses involve financial misdealings.
28 Federal contractors such as Lockheed Aircraft have in the past obtained such records from the federal
departments with which tliey do business.
261
will be shared with federallj- insured banks, hospitals, insurance companies, etc.^^
At the state level, the N YIIS experience suggests that a wide range of state
agencies and some private firms will have access to the files for clearing potential
employees or licensees. 3° The guidelines provide that state agencies (except for
criminal justice agencies) cannot use the data in connection with licensing or state
and local employment, vuiless "legislative action at the state and federal level or
Attorney General Regulations" provide otherwise. But, as the New York ex-
perience shows, a number of states already have clearance authorization laws, and,
since Congress has authorized the sharing of identification information with such
states — with the approval of the Attorney General — the exclusion promises to
be of limited value. (The Attorney General has never withheld approval from a
state agency seeking access.) Even if approval or clearance should be denied, local
policy will inevitably determine the terms of access because the NCIC system
lacks adequate sanctions to apply to nonconforming states. At least one state,
Iowa, is considering making the information available to anyone willing to pay
for it.3i
The looseness of the access provisions becomes more ominous in view of the
parallel rapid growth of law enforcement intelligence files containing sensitive and
unsubstantiated information .^^ In addition, the provisions virtually invite linkages
with information files maintaiiied by public and private agencies. LEAA is
presently cooperating with HUD and several other federal agencies to fund ex-
perimental programs in six cities ^^ that will provide city managers or mayors
with "integrated municipal information systems" (IMIS) for management pur-
poses. The IMIS is being promoted by the National League of Cities as a "sig-
nificantly new approach to the process of local government itself," one "that will
require a degree of commitment and level of expenditure by municipalities which
has never before been associated with computer-based systems." The new sys-
tems will eventually include data from all urban service departments — police,
welfare, schools, etc. — as well as underlying demographic and other facts that
could be useful in making urban management decisions. The enlarged, organized
data base supposedly will point to new relationships among urban problems, and
consequently will improve policy-making.
The IMIS could jjresent serious problems; total recall of statistics could be
extremely harmful to the indi\idual citizen. As Robert Knisely, the director of the
program has written:
If vital statistics, and school, emploijment and criminal justice records can be pulled
together on a named individual at will, a child's teachers may find out he is illegitimate,
his poor grades may keep him from getting a job, his lack of a job may lead to crime and
his criminal justice records may keep him permanently u7icmployed.^*
Although Knisely sees certain potential benefits in the program, he concludes
that they are overbalanced by the likelihood that neither the courts nor the legisla-
tures will exert adequate control over the emerging technology. In any event,
the possibility that criminal information files will become a part of a larger city-
wide integrated information system is a real one. In California, Iowa and other
29 On Dec. 3, 1971, Congress approved, as part of the fiscal 1972 FBI appropriation, the following blanket
authorization for the distribution of FBI data:
"The funds provided in the Department of Justice Appropriations Act, 1972, for Salajies and Expenses,
Federal Bureau of Investigation, may be used, in addition to those uses authorized thereunder, for the
exchange of identification records with officials of federally chartered or insured banking institutions to pro-
mote or maintain the security of those institutions, and. if authorized by state statute and approved by the
Attorney General, to ofBciaJs of state and local govermnents for purposes of employment and licensing,
any such exchange to be made only for the official use of any such official and subject to the same restric-
tion with respect to dissemination as that provided for under the aforementioned Act." (Congressional
Record, Dec. 3, 1971, S 20461.)
In 1972 a proposal was submitted to Congress to reverse the 1971 action. At the time of this report that
proposal, an amendment to the pending Justice Department appropriations bill, was before a House-Senate
Conference Committee. In the meantime the Justice Department (through Sen. Hruska) introduced
S. 3834 (HR 15929) to assure the broad availability of FBI records.
2" See letter from Aryeh Neier, executive director of the American Civil Liberties Union, to Sen. Sam J.
Ervin (D N.C.), March 23, 1971 (copy on file with the Senate Subcommittee on Constitutional Rights),
listing state agencies with access to N YIIS flies.
31 Des Moines Simday Register, July 2, 1972, p. 3A.
32 We have already pointed out that LEAA is funding regional and state intelligence networks for the col-
lection and analysis of data on organized crime, as well as state and local intelligence-gathering systems on
civil disorders and militants and other nonconformers. Because of the difficulty of standardizing intelligence
infoiTnation, it is unlikely that interstate computer exchange of such data will be reaUzed, at least for some
time. However, once the data are centralized at the state level under the auspices of the agency responsible
for operating the central criminal information files, it becomes accessible to other state or federal agencies
who will be directed to the state of record through the NCIC system. And the Attorney General has the
power under the present statutory scheme to combine federal investigative and inteUigence flies with the
NCIC criminal offender files.
33 The IMIS cities are: Dayton, St. Paul. Long Beach, CaUf., Reading, Pa., Charlotte, N.C., and Wichita
Falls, Tex. Other jurisdictions are combining criminal justice computer data with information from other
pubUc agencies on their own.
3^ Knisely, Robert A., "The Fruit of the Tree of Knowledge— Privacy Problems in Integrated Municipal
Information Systems," Dec. 7, 1971, p. 7.
262
jurisdictions, data from a variety of social service agencies are already being com-
bined in a single administrative unit that is also responsible for criminal justice
data.35
Beyond I MIS, which is a deliberate, small-scale experiment, it is likely that
private and public decisionmakers will step up their generalized demands for
whatever data are available on the individuals with whom they are concerned.^^
Senator Sam Ervin (D-N.C.) has described the problem this way:
''Interrelationship" is the key word here. Once the correlating process begins on
individual personal data in the many files of government, all the weaknesses and limita-
tions of the computer as a machine will he operating on a grand scale to make possible a
massive invasion of the privacy of millions, and it raises the specter of a possible
program of routine denial of due process. Interagency, inter-business networks are
being established of computers that talk only to each other. Decisions affecting a per-
son's job, retirement benefits, security clearance, credit rating or many other rights
may be made without benefit of a hearing or confrontation of the evidence.
The computer reduces his opportunity to talk back to the bureaucrats. It removes
his chances to produce documents, photographs or other evidence to alter a decision.^''
The problem of potential linkages between criminal justice sj'stem and other
governmental files on individuals has been centered in a debate that has plagued
the new system since its inception. The NCIC guidelines initially required partici-
pating states to utilize computers "dedicated" to law enforcement uses only and
managed by law enforcement personnel. Many of the states have opposed this
l^olicy on the grounds that dedicated computers cost more and, in some cases,
that state law requires that all computer systems be centralized under the control
of the governor.28 According to Donald Roderick, Jerome Daunt's successor,
the FBI will now permit each state to set its own rules in accordance with existing
provisions for statewide computer administration. If a decision is reached to use
a nondedicated computer, however, that state must make a showing that the
criminal justice data are under the control of law enforcement officials.
The Need for New Legislation
Neither the FBI nor LEAA, the two agencies of the Justice Department with
the resources or powers to impose regulatory controls, has developed adequate
safeguards for the fast-growing computer files on criminal offenders. The NCIC
guidelines are inadequate. As we have indicated, most of them are nonspecific,
relj'ing on state statutes to spell out specific protections. Since most of the states
have no regulatory legislation on the books and the few laws that have been
passed are inadequate, the system affords little protection against abuse. Further,
the enforcement of the few NCIC standards that are binding depends exclusivel,y
on the FBI's willingness to exclude a noncomplying state from the system. This
ultimate sanction has never been invoked.
Project SEARCH developed more comprehensive privacy and operational
guidelines,^' but these guidelines are advisor,y only, and not legally binding on
the states. LEAA has been unwilling to impose the SEARCH standards as a
condition of its grants. It has simply suggested that states contemplating the
purchase of information systems with LEAA monej^ "ensure that adequate
provisions are made for system security, for protection of individual privacy and
the insurance of the integrity and accurac}' of the data collection."
3' Iowa's TRACIS (TrafRc Records and Criminal Justice Information System), for example, will connect
with the state's Department of Public Instruction, the Department of Social SeiTices and others. And the
California CLETS system (see Chapter IV) will be able to relate to records from the public schools.
36 In recognition of this growing tendency and the immense data files available through his department,
particularly those tied into social security numbers (as is the NCIC system), HEW Secretary Elliot L.
Richardson has appointed an Advisory Committee on Automated Personnel Data Systems to develop
safeguards to "protect against potentially harmful consequences to privacy and due process." (See "Charter
of the Secretary's Advisory Committee on Automated Personnel Data Systems," Feb. 27, 1972.)
37 "The Computer and Individual Privacy," address of Sen. Sam J. Ervin (D N.C.) to the American
Management Association, March 6, 1967.
38 Jerris Leonard sided with the states, saying, "As long as I am here, we are going to carry out the philos-
ophy of this administration and that is the states will decide what they need ... If the FJBI doesn't want
to provide the service, we'll find someone else." fW'ashington Evening Star, Jan. 22, 1972.) In addition the
National Association for State Information Systems formally protested the dedication requirement to
Attorney General Mitchell.
39 See Technical Report No. 2, July 1970, "Security and Privacy Considerations in Criminal History
Information Systems," prepared by the Project SEARCH Committee on Security and Privacy. The com-
mittee has also prepared a model state statute and model regulations for the governance of state information
systems. These have been introduced but not acted upon in several state legislatures.
263
Congress anticipated the need for regulation of the growing law enforcement
information network in 1970 and added an amendment to the Safe Streets Act
requiring LEAA to submit legislation by ]\Iay 1, 1971, to ensure:
The integrity and accuracy of criminal justice data collection, processing and
dissemination systems funded in whole or in part by the federal government, and pro-
tecting the constitutional rights of all persons covered, or affected by such systems.
On Sept. 20, 1971, Senator Roman Hruska (R-Neb.) introduced S. 2546, "The
Criminal Justice Information Systems Security and Privacy Act of 1971," on
behalf of the Administration. The bill essentially would codify the standards
established by the NCIC polic.y board and give the Attorney General the authority
to alter the scope of the national system as he deems necessary. The bill, which
has been severely criticized for failing to provide adequate protection against
misuse of data, was never assigned to an appropriate subcommittee for hearings.
In addition in 1970 Congress mandated the creation of a National Commission
on Individual Rights to study, among otherthings, the impact "of the accumulation
of data on individuals by federal agencies as authorized by law or 'required by
executive action" and to determine which practices "are effective, and whether
they infringe upon the individual rights of the people of the United States."
(Section 12, The Organized Crime Bill of 1970.) This provision has never been
implemented.
There are serious questions whether the state and national computerized files
are necessary, whether they are worth their cost, both social and financial, and
whether they work. Perhaps with more experience the FBI or LEAA will develop
a convincing case concerning the manner in which the computerized information
systems have developed. However, the Justice Department has not yet confronted
the very real problems that the new NCIC system is creating, particular!}' in
regard to governmental overreaching, invasions of privacy and infringement of
basic constitutional rights.
Underlying the deficiencies of the new NCIC criminal offender records system
is the vagueness of the legislation under which it operates. 28 USC § 534 enables
the Attorney General to set up (and alter) a system to "acquire, collect, classify
and preserve identification, crim.inal identification, crime and other records," and to
"exchange these records with, and for the official use of, authorized officials of the
federal government, the states, cities and penal and other institutions." (Emphasis
added.) The statute contains no standards; and despite the fact that the Attorney
General has full power to do so, no regulations have ever been issued to govern the
information svstem except to delegate the Attorney General's administrative
authority to the FBI (28 CFR § 0.85).
In addition to the question of the Justice Department's statutory power,
several aspects of the system as it is presently administered raise important con-
stitutional questions. To include information imrelated to criminal convictions in
the state files (and by automatic referral in the national file) may well violate the
First Amendment and the due process and equal protection clauses of the United
States Constitution.
For example, on numerous occasions the Supreme Court has held or indicated
that the Fifth and Fourteenth Amendments' guarantee of due process protects
individuals from injury caused by public bodies acting without giving the individ-
ual the opportunity to challenge or clarify the factual assumptions on which the
agency is operating.*" The protection against arbitrary action and the right to be
heard apply even when the activities involved do not entail direct civil or criminal
penalties, and extend to the circulation by the government of prejudicial informa-
tion.
In Joint Anti-Fascist Refugee Committee v. McGraih,*^ the Supreme Court con-
fronted a situation remarkably similar to that posed by certain aspects of the
present-day Justice Departm_ent data distribution program. Ruling that the
Attorney General must provide an opportunity for a hearing before including an
organization on his subversive list, Justice Felix Frankfurter stated:
*" See, e.g., Joint Anti-Fascist Refugee Committee v. McOrath, 341 U.S. 123 (1951); Greene v. McElroy, 300
U.S. 474(1959).
*i Supra, n. 40. Although the Attorney General was ordered to Institute proper procedures liefore adding
an organization to the subversive list, the majority of the Court did not join any one opinion. Justice Frank-
fui-ter's constitutional reasoning has become the most noted of the opinions entered in that case. In Wisconsin
V. Constant ineau, 400 U.S. 433 (1971), the Supreme Court held unconstitutional a Wisconsin statute author-
izing local authorities to post public notices prohibiting the sale of liquor to persons who drink excessively,
without affording the interdicted individual a right to challenge the determination.
264
The heart of the matter is that democracy implies respect for the elementary rights of
men, however suspect or unworthy; a democratic government must therefore practice
fairness; and fairness can rarely be obtained by secret one-sided determination of
facts decisive of rights. . . . No better instrument har been devised for arriving at truth
than to give a person in jeopardy of serious loss notice of the case against him and
opportunity to meet it. . . . The Attorney General is certainly not immune from the
historic requirements of fairness merely because he acts, however conscientiously, in
the name of security. 3^1 U.S. at 170-174-
Under the newNCIC system the federal and state agencies which disseminate
background inteUigence information or data pertaining to arrests not followed by
conviction, without giving the subject the chance to clarify or correct his record,
could be found in violation of the due process clauses of the Fifth and Fourteenth
Amendments.
It is also quite possible that the NCIC criminal history file violates the equal
protection clause, l)y magnifying the consequences of present discriminatory
police practices. Because the data it collects focus on street crimes and offenses that
tend to be committed by the disadvantaged and minorities, and because of its in-
discriminate inclusion of data on arrests for ill-defined crimes (such as arrests for
suspicion) and arrests not followed by charges or convictions, the NCIC file rein-
forces the existing class and racial bias of the criminal justice system. Arrests for
"suspicion" or "investigation," for vagrancy and other vague crimes, constitute
a major form of poUce discrimination against blacks and Chicanos. Keeping
permanent computerized files of such arrests (and in some cases convictions) adds
another layer of discrimination to the- criminal justice system, encouraging sur-
veillance, the imposition of stiffer penalties, etc., on minorities. When such records
are made available to employers, discrimination in the hiring process is com-
pounded. (See Gregory v. Litton Systeins.) *^
CONCLUSIONS AND RECOMMENDATIONS. LEAA is investing substan-
tially in the creation of a national computerized criminal offender information file
serving state and local contributors and users. The files at present contain too much
information and are accessible to too many agencies, including private business con-
cerns. Few safeguards protect legitimate rights of personal privacy or prevent use of the
information In a discriminatory manner. Standing alone, the new information sys-
tems requite immediate and comprehensive regulations and controls. The potential
harm that they could inflict, however, is made even more critical by (a) the coincident
development of new state-level intelligence files on civil disorders and dangerous persons
that are maintained by the same agencies that administer the information files and that
are accessible to participants in the national system, and (b) the rapid expansion of
computerized records on individuals maintained by welfare, health, education and other
public and private agencies that can be (and have been) readily interfaced with the
criminal offender files. To ensure integrity and fairness of such systems:
No further federal funds should be distributed for the operation, expansion or
development of state and/or national infornialion systems prior to the completion of a
study by a neutral and reputable scientific body — such as the National Academy of
Sciences or the National Commission on Individual Rights — setting forth the policy
options facing the nation in regard to such systems. In particular, the study should
examine: the necessity for various possible kinds of information {and intelligence)
systems to effective law enforcement; the most appropriate structure(s) for such systenis
(centralized, decentraiized, state controlled, law enforcement controlled, etc.); the
kinds of safeguards that can and should be built into such stjstems; the relationship of the
data banks developed under such systems to other data banks; and the proper forms for
public regulation of such systems.
If a national or multi-state criminal justice information system is found to be
justified after the full report by the independent body, federal legislation should be
passed creating an affirmative right to privacy, which would require the government to
justify in advance any activity that would conflict with that right. In addition, regula-
tory laws should be passed to control all information systems (1) developed and main-
tained by agencies of the federal government, (2) operated by state or local agencies but
supported wholly or partly by federal funds and (3) interfacing with federal systems or
«316 F. Supp. 401 (CD. Calif. 1970). The President's Commission on Federal Statistics. Vol. Ill (1971),
p. .546, reported: "An applicant who lists a previous furest faces at best a 'second trial' in which, without
procedural safeguards, he must prove his innocence; at worst the listing of the arrest disqualifies him per se.
The arrest record is the first of a series of status degradation ceremonies in the criminal law process." The
commission pointed to the fact that in a recent survey of 39 counties, not one Msts arrests that have not led to
convictions. "The 'criminal record' in these 39 counties includes only convictions, and often only those for
serious crimes" (p. .■)48). For a detailed treatment of the problems inherent in the broad dissemination of
arrest records, see Security and Privneu of Criminal Arrest Records. Hearings before Subcommittee No. 4 of
the House Committee on the Judiciary, 92nd Congress, 2nd Session (April 1972).
265
federally sup-ported systems. (If such legislation is not passed, the Attorney General
should issue formal regulations under his present powers.) Among the kinds of safe-
guards that should be considered for inclusion in the legislation are the following:
9 The legislation should spell out with specificity (rather than defining by exclusion)
the scope of the criminal history offender files and the matter to be included therein.
Only serious crimes that pose actual danger to the public and are likely to involve
interstate mobility should be included.*^ The national file should contain only iden-
tifying data, records of active arrests, convictions and sentencing and an identification
of the state agency maintaining the full records. Records of arrests not followed by
indictment or information within one year, or conviction within two years, should
be deleted f 7-0771 the files. When a criminal law is repealed, the record of prior violations
of it should be deleted from the computer. An affirmative obligation should be placed
on all participati/ig states to delete such i7iformation fr07n their own files as well as the
FBI files. Failure to do so should result in termination of participation i/i the syste/n
and imposition of financial pe7ialties.
# Specific congressi07ial approval should be required for any expansion or inodifica-
tion of the initial system, such as a decision to interface with other data batiks withi7i
the Justice Departme7it or other federal age7icies.
# The legislatio7i should provide for operation and/or monitoring of the national
system by an independent agency or co7nmission that would conduct audits and
spot-checks on both the operating ageiicy and the contributing agencies, and would
report annually (and periodically, as requested) to Congress. The C07nmission, which
should include co7istitutional lawyers, representatives of citize7i's groups and other
civilians, would share responsibility with the operating agencies for the development
of detailed guidelines to govern the operation of the system. No state should be allowed
to participate in the federal system until such time as it has passed its own statute
reflecting the national standards, creating a state monitoring body and providing for
the protectio7i of individuals whose records are i7icluded in the system.
% Each i7idividual should be granted the right of access, 7iotice and challenge to all
i)iformation pertai7iing to him. A person should receive notification when his file is
opened, a7id upon each entry he should be informed of his right to access and challenge.
During a challe7ige, to protect the individual from incomplete and inaccurate informa-
tion, an embargo should be placed on use of the information.
# The legislation itself should establish general standards for the operation of the
syste7n and should require the Attorney Ge/ieral to issue more specific, ma/idatory
regulations to govern dissemination of the infor7nation to cri7ni7ial justice age7icies,
the courts and corrections institutions and other public agencies. The i7ifor7nation
should be graded so that only the summary computer record (not access to supple7ne 7itary
state investigative files) will be available to certai7i recipie7its, such as federal a7id state
employers, or courts seeking to determine sentences.**
(Mr. Gray subsequently submitted the following document for the
record :)
Mr. Gray. Before responding to the request of Senator Mathias that I comment
on the conclusions and recommendations contained at the end of Chapter II of the
publication "Law and Disorder III," I would like to remind the Committee that
there has been furnished for the record a paper dated September 20, 1972, cap-
tioned "National Crime Information Center (NCIC), Computerized Criminal
History Program, Background, Concept and Pohcy as approved by the NCIC
Advisory Policy Board." A close analysis of this paper, I think, will show that we
in law enforcement have recognized not only the need for applying computer
technology to law enforcement's needs but also the absolute necessity for stringent
safeguards to protect privacy rights.
Further, I believe it pertinent to point out that the FBI operates only the one
computerized information system and that is NCIC. We are not associated with
any other systems that are operating or under development at the Federal level.
" This would remove most victimless crimes from the file as well as the other petty offenses that ai^e most
subject to enforcement patterns that are socially discriminatory.
" The legislation should probably also waive sovereign immunity on behalf of the United States and make
them jointly liable with any individual who disseminates information to an unauthorized recipient, on a
strict liability basis. The law should include minimum damage penalties, attorneys' fees, and a provision
for treble damages; the Individual defendant and the governmental employer shall have the burden of prov-
ing a good-faith effort to malie sure that the recipient did have authority to request and receive the infonna-
tion, in order to escape punitive and treble damages. The same sanctions should apply for dissemination of
erroneous infonnation. U.S. district courts should be given jurisdiction without regard to the amount in
controversy.
266
We do not plan to become a part of any such systems. Please bear m mind that the
only computerized data in the NCIC system is information on wanted persons,
stolen articles, and criminal histories.
We have studied Chapter II and disagree with many of the observations and
inferences expressed. The authors have based their recommendations and conclu-
sions on many of these questionaljle statements. I will address myself to the
areas wherein we disagree by commenting specifically on each of the recom-
mendations and conclusions. 1 must confine my remarks primarily to the NCIC
system because we do not possess any detailed knowledge of other systems alluded
to in Lawyers' Committee for Civil Rights Under Law report.
The first conclusion of the report is that too much information is being placed
into a computerized form; too many agencies, including private business concerns,
have access to this computerized data; and few safeguards exist to protect the
right of personal privacy.
All of the information in NCIC is needed by law enforcement agencies and
other criminal justice agencies on a daily basis and enables them to carry out
their responsibilities in a much more efficient manner.
I frankly do not believe the authors have any sincere argument that a com-
puterized file on wanted persons and stolen articles threatens any rights of an
individual.
The authors make the statement that the NCIC Criminal History File possibly
violates "the equal protection clause." I cannot agree with this contention. In
simple terms, what we have set out to do, with respect to the criminal history file,
is to put into a digital form for computer storage information concerning the stages
of a criminal ofi'cnder's formal contacts with the criminal justice agencies, i.e.,
information to identify him, data on arrest and charge, what the court action was,
and custody or supervision status. All of this information is a matter of puljlic
record. It is the same information already on hand in a manual format in the FBI
Identification Division. The program we have underway is to computerize the
information so that it can readily be obtained in a much more rapid manner. The
file will contain no other information. In fact, the NCIC policy paper clearly states
that " Data included in the system must be limited to that with the characteristics
of public record."
We have provided safeguards designed to control the dissemination of criminal
history data and to restrict its availability. Briefly stated, criminal history data is
available outside the Federal Government only to criminal justice agencies for
criminal justice purposes, unless other dissemination is specifically provided for by
Federal or state statutes. I believe it worthwhile to quote the following excerpt
from the NCIC policy: "This precludes the dissemination of such data for use in
connection with licensing or local or state emploj-ment, other than with a criminal
justice agenc.y, or for other uses unless such dissemination is pursuant to state and
Federal statutes. There are no exceptions."
We require each state control terminal having the abilitj^ to accept the criminal
history file of NCIC to sign an agreement to abide by the NCIC policy. The agree-
ment specifically provides that service will be immediately suspended if security or
dissemination requirements as detailed in the NCIC policy paper are violated. I
can assure the Committee the FBI most certainly wiU cause immediate termination
of service to any agency guilty of unauthorized dissemination of data. The state
people know this. They need the NCIC service and I do not foresee a problem. In
this respect, 1 would like to point out that since 1924 the FBI has been exchanging
arrest data, in the form of identification records (so-called "rap sheets"), with
local and state agencies. There have been only a very few instances where an
agency has been found to have allowed unauthorized use of such information and
in those cases we have taken action, including the discontinuance of the identifica-
tion service.
By reason of the well-defined safeguards under which the NCIC system operates,
I just cannot accept the assertion that private business concerns have access to
criminal history data.
The Law and Disorder III report states that comprehensive controls are needed
because the states are developing systems that have "intelligence files on civil dis-
ordei's and dangerous persons" which are accessible to participants in the national
system. Further, it is alleged that computerized data maintained by w"elfare,
health, education and other public and private agencies can and has been inter-
faced with the criminal offender files.
We are not in a position to comment on whether the states are creating com-
puterized intelligence files because any such files would not be a part of the NCIC
267
system. I can make the positive statement that the FBI has no such intelligence
files in NCIC nor do v/e have any plan to develop such files. I can also assure
you that the NCIC sj^stem as designed and operating makes it absolutely impos-
sible for the NCIC computer to obtain information from a state intelligence file.
Furthei', it is likewise impossible for any particular state or Federal computer or
terminal to direct a message through the NCIC computer for the purpose of
inquiring into another state intelligence file.
The validitj^ of the statement in the report to the effect that computers of public
and private agencies (I presume the authors are not making reference to criminal
justice agencies) can and have been interfaced with computers containing crim-
inal offender files is highly questionable. We know of no such situation as alluded
to by the authors and honestly doubt that any criminal justice agency w^ould
permit this kind of access.
The NCIC policy paper specifically delineates who can access criminal history
data, i.e., police departments, prosecutive agencies, courts, correctional depart-
ments, parole commissions, identification agencies, and state agencies which by
statute have as their sole function the operation of a criminal justice information
system. In addition, NCIC requires that any and all equipment capable of
directly interfacing with the NCIC computer be under the management control
of a criminal justice agency.
Another requirement in the NCIC policy is that criminal historj^ records will
not be centrally stored or controlled in "data bank" systems containing noncrim-
inal justice-related information such as welfare, hospital, education, revenue,
voter registration, and other noncriminal files.
The Lawyers' Committee recommends no further Federal funding of state
and/or national information systems until an independent study has been made
to establish:
1. "Necessity for various kinds of information (and intelligence) systems to
effective lavv' enforcement,"
2. "The most appropriate structure (s) for such systems (centralized, decen-
tralized, state controlled, law enforcement controlled, etc.),"
3. "The kinds of safeguards that can and should be built into systems,"
4. "The relationships of the data banks developed under such systems to
other data banks,"
.5. "The proper forms for public regulations of such systems."
In 1967, The President's Crime Commission asserted there was a need for
". . . an integrated national information system to serve the combined needs
at the national, state, regional and metropolitan or count}'' levels of the police,
courts, and correction agencies, and of the public and research communit}'"
fPage 267, Chapter 11, Science and Technology, "The ChaUenge of Crime in a
Free Society"). The NCIC system was designed and implemented to fill this
need. 'The system is fulfilling the need as evidenced by the enthusiastic and
extensive use being made of it. There are now nearly 4,000,000 records on file.
Approximately 100,000 transactions per day are being made and the file is averag-
ing approximately 800 "hits" per day.
The system concept and limitations as to type of data filed in NCIC (no intel-
ligence or unverified information) have been carefullj^ and minutely documented
in the NCIC policy paper to which all participants must adhere. Security safe-
guards are carefully delineated in this document to insure individual privac}^
rights are protected. Sanctions are prescribed and will be imposed in the event of
violations.
The Lawyers' Committee recommei^ds that legislation be enacted that will
limit criminal history files to "only serious crimes that pose actual danger to the
public and are likely to involve interstate mobiUty. . ." Present NCIC policy
has already taken cognizance of this problem. Only more serious offenses will be
included in the CCH file. Specifically excluded are arrests for drunkenness, vag-
rancy, suspicion, traffic offenses (other than driving under the influence or "hit
and run"), juvenile offenses (unless tried as an adult) and other similar minor
oft'enses. The record wall include no more than identifj'ing data, arresting agency,
charge, disposition and custody or other postsentence information. Legislation,
if believed necessary, would simplj^ re-enforce the present NCIC policy and
procedures now in effect.
The authors assert that arrests not foUovi^ed by indictment or information within
one year or conviction wdthin two years should be deleted from the computerized
file. This recommendation should reaUstically be considered in fight of present
court backlogs and trial delays brought about by pretrial maneuvering. An arrest
record might weU be expunged before the case came to trial.
268
The recommendation does highlight the problem of obtaining arrest disposition
data in a system wherein input derives from voluntary submissions by the par-
ticipants. The problem is not peculiar to the computerized record but rather has
been with us a long time in relation to manual files. Some states have laws man-
dating the entry of arrest disposition data bj^ the arresting agencies, many have
not. We would support and encourage any reasonable measures, including Federal
legislation, that will help deal with this problem.
It should be noted that it is a "fact of life" that arrest information, with or
without disposition or conviction data shown, is valuable to police agencies in the
discharge of their obligations.
The Lawyers' Committee recommends that specific congressional approval be
required for any expansion or modification of the sj^stem "... such as a decision
to interface with other data banks within the Justice Department or other federal
agencies."
This recommendation seems to imply a possible expansion of the NCIC system
for interchange of intelligence or personal history information among various
agencies. The point is moot. The NCIC system, as stated earlier, just does not
nor will not contain other than documented information on stolen property, wanted
persons and criminal histories. The NCIC does not nor will not access any other
data banks.
The Lawyers' Committee recommends creation of a "watch dog" commission
to operate or monitor the NCIC system. We believe that our present self -policing
procedures in which the user agencies full}' participate, will insure against misuse
of the system while providing maximum service to the criminal justice community.
It is our view that legal remedies presently available in event of system abuse are
adequate.
The recommendation is made that each individual be granted right of access,
notice and challenge to all information concerning him, should be notified when
his file is opened and on each entry should be informed of his right to challenge.
The only file in NCIC on a person is (1) a record of his status as a wanted person
with warrant outstanding (the problem of advising him of this record of his fugi-
tive status is obvious) and (2) criminal history record resulting from his arrests.
(It would seem the fact of his arrest and being fingerprinted would to him create a
presumption and thus notification that a record entry had been made.) NCIC
policy supports the individual's right to see and challenge the contents of his
criminal history record.
Finally, the Lawyers' Committee suggests that legislation should ". . . establish
general standards for operation of the system. . ." and require the Attorney
General to ". . . issue more specific, mandatory regulations to govern dissemina-
tion of the information. . ."
As to need for legislation to establish operating standards for the system — the
NCIC policy paper has been furnished to the Justice Department, various con-
gressional committees and members of the Congress and has been disseminated
elsewhere — including the Lawyers' Committee for Civil Rights Under Law. We
believe the procedures and standards set forth in this document are well conceived,
logical and properly balance security and privacy safeguards with the practical
needs of the criminal justice community. Any need to modify or redefine the pres-
ent policies or to reenforce them by legislative enactment is not apparent to us.
The Lawyers' Committee recommends there be legislation to limit dissemination
to the "summary computer record" and not supplementary data in state files.
This recommendation seems to acknowledge that the data in NCIC is properly
subject to dissemination and that supplementary information in state files (pre-
sumably intelligence and investigative information) is not. That is the present
NCIC policy, hence the only question here is whether the policy should be re-
affirmed by federal law. We defer to the Congress as to necessity for any such
reaffirmation.
In conclusion, it is our view that Chapter II of the Lawyers' Committee report
should certainly be considered in the light of the four basic premises which the
authors admit may color their conclusions and recommendations. These are:
"A strengthened criminal justice system alone cannot begin to solve the 'crime
problem.' "
"In a democratic society all available alternatives should be explored before the
role of the police is expanded."
"The agencies of the criminal justice system should be subjected to broad public
review and participation."
"The criminal justice system as a whole is presently characterized by widespread
discrimination against the poor and minorities."
269
Senator Mathias. Thank 3'ou very much, Mr. Chairman.
Thank you, Mr. Gtslj.
Mr. Gray. Thank you, Senator.
Senator Bayh. Mr. Gray, the hour is late, and you are verj^ kind
to respond to my request.
I would like to get 3^our thoughts on a couple of items that we have
already gone over somewhat, but I would like to find out exactly
where we are and, more important, where a'ou ma}' be.
We talked about the Cleveland speech. That is past. The Cleveland
speech has been given. You do not think it had any political ramifi-
cations. I happen to think it does. There is not much we can do about
that difference of opinion, except to try to define where we go from
here.
Now, I am sensitive to this because of the involvement we had
earlier wdth a Supreme Court nominee. Some people felt there was
impropriety involved. I did not, and do not today, feel that there was
intentional impropriet}*. But m}^ concern reached the point where I
felt duty bound to oppose that nominee when he replied specifically
that he thought that the standard that was questioned would be the
standard that he would set in the future as a Supreme Court Justice.
I felt that as an ethical standard, it was a significant retreat from what
Supreme Court Justices had followed, and should follow, in avoiding
the appearances of impropriety'.
I am concerned about your future standard more than about our
difference of opinion about a past speech which we have discussed.
This memorandum that went out — as I understand, there were a
couple of memoranda. Did you see more than one or are we talking
about
Mr, Gray. I hope. Senator, that we are talking about only one. I
have seen enough of those memoranda, and I am talking about only
one in this particular field.
Senator Bayh. All right. Can 3'ou tell us if it went to 20 or 30
people?
Mr. Gray. I was told that by — Patrick O'Donnell reported that
to my executive assistant, David Kinley.
Senator Bayh. Did he mention who else had received them?
Mr. Gray. The heads of executive departments and agencies.
Senator Bayh. Do you suppose that 3'ou ma}^ be in a little different
categor}^ from them, as far as political activity?
Mr. Gray. No question about it. Senator, and obviously, Mr.
O'Donnell did not get the same word that I got from the President.
I think it was a gross mistake to send that memorandum to me. I do
not make any bones about that, but if I may have your permission,
Senator, I would like to say this just in the hope that I can persuade
you. When I accepted the speech, no conventions were held and there
were no nominees. I did not know any scheduling and I really did not
have any political intent in going there. I really mean that. However,
I can see your point and I understand it. If I have learned nothing
else from these hearings, I have learned that Gray has got to be a
whale of a lot more careful about his speechmaking, and I understand
that very clearly.
Senator Bayh. I appreciate your expression and I think you are
sincere about that. I do not think that Mr. O'Donnell was being fair
91-331— 73^— IS
270
either to you or to the President, if I may s&j so, in hght of the admoni-
tion that you say the President gave you not to participate in politics.
Even to ask you to go, to make a speech which he himself described — —
Mr. Gray. No.
Senator Bayh (continuing). If you read that:
With Ohio being cruciall}^ vital to our hopes in November we hope that you will
assign this forum some priority in your schedule.
That was done for one reason, and one reason only.
Mr. Gray. That is right. It is the only natural probable conclusion
to draw, find I drew it, and that is why I asked for that memorandum
from the Crime Records Division as it was then called.
Senator Bayh. Do you think that if you have to make that assess-
ment 4 years, or three and a half j^ears, from now you might come
down on a different side of that question?
Mr. Gray. No cjuestion about it. The fact remains that I have
learned a lesson from these hearings. I must be most careful regarding
any speeches that I make and ^\here I make them, even in regard to
the sponsoring group. No question about that. I thought I was
adhering to that standard throughout these speeches, believe me.
Senator Bayh. I had no other intention.
Senator Bayh. Perhaps it would help to define that standard a
little more specifically now, and maybe it will be of benefit for all of us.
Mr. Gray. No question about that.
Senator Bayh. I was impressed with your answer to some of the
questions yesterday that if you had a confrontation with your superior,
who would be the Commander-in-Chief and captain of the team, you
would resign and go back to your law practice. So that we may have
a bit more grist for that particular mill, you referred, as I recall, to
a confrontation invohdng a civil case in which you almost resigned.
Are you free to give us some information about that so we can judge
your determination to stand on your own two feet?
Mr. Gray. I prefer not to. But if the committee really would like
to have that information, I am here at the committee's beck and call,
but my preference is not to give it. The case is contained in my
brochure, and I took a severe tongue lashing as a result of the case
from a Federal district judge. So I would prefer not to go any further
unless the committee — unless you, Senator Bayh — feel you really
want m.e to go into it. But it is right there. I spelled it all out in the
personal data questionnaire that I delivered to each Senator.
Senator Bayh. The details of that case are in the personal data
which you furnished?
Mr. Gray. Yes, sir; the incident of my court appearance and the
incident of my tongue lashing, it is all there. But the fact that I
Senator Bayh. Has that personal data been made public?
Mr. Gray. There are some newspapermen who have seen it and
who have asked for it. I sent this to the Senators, and I have pre-
viously given it to some newspapermen, too. They have asked for
it, and I have told them it was available.
Senator Bayh. Let me think about it, and perhaps we can talk
about it in private.
Mr. Gray. Sure, I will tell you exactly what it was.
271
Senator Bayh. It could be helpful. I am not familiar %vith the case
now. I am not familiar with the issue involved. Just getting a tongue
lashing from a judge is not the kind of thing I think a person would
resign for.
Mr. Gray. No, I did not desire that at all.
Senator Bayh. I thought you did sa}^ that you almost resigned
because of a disagreement.
Mr. Gray. That is right. Yes, sir; that is correct.
Senator Bayh. Wliy do we not discuss that in private?
Mr. Gray. Yes, sir; I would be happy to.
Senator Bayh. Now, I understand from talking to the chairman
tliat if you have no objection — let me just say this, one of the serious
questions I want to propound, so that j^ou will have an opportunity
to defend yourself against some of the things that have been said or
explain your side of the case, involves the Whitten-Anderson affair
brought up by Senator Cook.
Mr. Gray. Yes, sir.
Senator Bayh. Mr. Anderson and Mr. Whitten, I understand, are
going to testifj' after you. Now, I brought it up with the chairman,
and he suggested that if they did make charges directed at you,
perhaps you would want to come back afterwards. If you want to
come back afterward, I do not want to raise those particular issues
now
Mr. Gray. No, whatever the committee desires as a whole, that is
going to be what I am going to do, to the best of my ability.
Senator Bayh. If these questions
Mr. Gray. I think one of the questions that is going to come up,
and I am going to answer it right now, is: "Did anybody in the
White House tell you to go after these particular individuals?" The
answer to that is categorically no. And: "Did the Attorney General
tell me to go after these particular individuals?" The answer to that
is categorically no.
Senator Bayh. If these questions are raised, or other things alleged
about the information you may have had prior to the arrest, you
would have no objection to coming back up and putting this issue
to rest or giving your thoughts about it?
Mr. Gray. No, sir; I am at the command of the committee. What-
ever the committee desires and votes, why, you know, I am going to
do it.
Senator Bayh. Why do we not wait to handle that series of ques-
tions. I do not know the facts about all these things. I have read
about them and you have read about them. To put the record com-
pletely straight, we ought to have your side of the matter.
Let me deal Avith a couple of things that have already been dealt
with somewhat in Senator Kennedy's line of questioning. You talked
about Watergate and j'^ou described the scope of the investigation as
being a full court press. If I might just touch on the specifics, you
were concerned about the implications that the Liddys and Hunts and
McCords were also involved with others. I assumed you pursued this
and felt that part of your mandate was to find out who ordered this
thing, and who else might be implicated, who ultimately supported
the operation, its financing, this kind of thing?
Mr. Gray. That is right; who aided and abetted, counseled, guided,
financed, participated.
272
Senator Bayh. We have gone down a number of names. Did you
submit that Hst of all of those that were interviewed? I think you
said yesterday you would.
Mr. Gray. Oh, yes, sir; I would. But then we had a modification,
you know, we had 48 hours after the receipt of the transcript to
submit the data, and my people are at work cranking up on it.
Senator Bayh. Fine. You did say, as I recall, Mr. Stans was inter-
viewed what, four times?
Mr. Gray. I think three or four, Senator.
Senator Bayh. Anyhow, he was interviewed more than once?
Mr. Gray. Yes, sir.
Senator Bayh. Did you ever, did anyone at the Bureau interview
former Attorney General John Mitchell?
Mr. Gray. Yes, sir.
Senator Bayh. When was this?
Mr. Gray. He was interviewed on July 5, 1972, and Mr. Stans was
interviewed, my record here shows, on July 5, 1972 and July 28, 1972.
Senator Bayh. I have heard some things floating around and
I would just as soon put this to rest, did you ever interview
Mrs. Mitchell?
Mr. Gray. We endeavored to interview Mrs. Mitchell, but
Mr. Mitchell said that Mrs. Mitchell's stories and the things that
were in the press were not so and we were not going to interview
Mrs. Mitchell. There was no need to interview Mrs. Mitchell and
that was that.
Senator Bayh. Wliy did you want to interview Mrs. Mitchell?
Mr. Gray. As I recall it now, and I may have to correct this, there
was that article in the paper that said she was going to do a block-
buster of a book that was going to reveal and tell all, and I am sure it
related to that.
Senator Bayh. Had any of the agents, Mr. Kunkel, Mr. Bates,
any of those requested that she be brought into the scope of the
interviewing?
Mr. Gray. Have they requested this? No, they did not. It would
have probably initiated at the case agent level but I do not know
where it initiated. I will have to check that out.
(Mr. Gray subsequently submitted the following document for the
record:)
Mr. Gray. After checking the record, I find that the proposed interview of
Mrs. Mitchell arose following a UPI release dated September 27, 1972, which
indicated that Mrs. Mitchell told a reporter she had thrown out many hints about
the bugging matter and indicated that she knew something about the matter.
This release was discussed between the Supervisors of the Accounting and Fraud
Section and based on the fact that the UPI release indicated she knew something
about the matter, a memorandum was prepared dated September 27, 1972,
recommending that Mr. Mitchell be contacted to arrange for an interview
of Mrs. Mitchell. I approved a recommendation that the interview with
Mrs. Mitchell be cleared through the Department of Justice. This was done and
the interview was approved.
Senator Bayh. Is it — —
Mr. Gray. But I did not say, "Boys, let us go get her and see
what she has to say." I did not do that. That is not the way it origi-
nated up the chain to me.
273
Senator Bayh. Is it standard operating procedure — let's fii'st say
that I am amused by some of the things that ]\Irs. Mitchell says and
I think that she is quite a lady, and I do not ask this to embarrass
her or anybody else — but is it customary in the process of the investi-
gation of a matter involving a \dolation of the criminal law for a
husband to be able to say that the FBI cannot inter\dew his wife?
]\Ir. Gray. I do not know if that would be customary, but one of
the things I have found in the FBI, Senator, is that the men and
women of the FBI have an innate sense of courtesy, decency, and
dignity, and I think that under those cu'cumstances this \yas appro-
priate. This man was a former Attorney General of the United States
and I think we would have accorded that courtesj^ to any officer of
the Government regardless of administration. It was just a matter of
courtesy and I do not think, I cannot classify it as a normal procedure
except for individuals of that type. But generally, we ad^dse Senators
and Alembers of Congress when we are going into any area where
they are going to have a particular interest, so it is partly that innate
sense of dignity, decency, and courtesy.
Senator Bayh. Let me say that is a sort of double standard. I
think you are sort of asking for trouble. If I may make an observa-
tion— well, I will not proceed with it.
Mr. Gray. Well, I may be gi^'ing you the wrong answer. Maybe
the Federal Bureau of Investigation, before it interviews a man's
wife, does ask him. I do not know. I think this is more a kind of
procedure that we would just go right ahead and interview. I had
better check to be specific. But this is my immediate visceral reaction
as to the reason why we proceeded in this manner.
(Mr. Gray subsequently submitted the following document for the
record :)
Mr. Gray. After checking this matter, Senator Bayh, I have learned that each
situation depends on the circumstances of the individual case and the person in-
volved in the potential interview. We do not have any rule that a husband is or is
not contacted when an interview of his wife is desired. It is strictly up to the
Special Agent and his supervisor to decide whether a husband would be contacted
if we wanted to interview his wife. In this particular instance, our contact with INIr.
JNIitchell was for two purposes. First, we contacted him as a couitesy because he was
the former Attorney General of the United States and secondly because we did not
know Mrs. Mitchell's location at that time and would, of necessity, have to go to
someone who probably would know her location, such as her husband, Mr.
Mitchell.
Senator Bayh. There is no husband and wife privilege there, I
su]ipose
Mr. Gray. No, the recommendation came up to me in a memoran-
dum from Mr. Bolz to \h. Bates, this is the way things are done in the
Bureau, September 27, 1972, ''Recommend that former Attorney Gen-
eral Mitchell be contacted to arrange for interview of Mrs. Mitch-
ell. If this is ai^proved it is beheved that contact with Mrs. Mitchell
should be made by special agents who have had previous contact with
her while Mr. Mitchell and his family were afforded protective services
by the FBI as those agents have an established rapport with her."
Senator, frankl}', I read that recommendation as being a recom-
mendation grounded on courtesy and nothing more than that.
Senator Bay^h. That does not recommend that she not be inter-
viewed by anybody, does it?
Mr. Gray. No, no.
274
Senator Bayh. But she was not?
Mr. Gkay. No, that is right. That former Attorney General Mitchell
be contacted to arrange for interview with Mrs. Mitchell. I approved
this.
Senator Bayh. Then when he was contacted
Mr. Gray. I did not say no.
Senator Bayh. When you interviewed Mr. Stans and Mr. Mitchell,
did they give you, or any of the agents, any information about some
of these financial contributions that ended up in Mr. Stans' safe?
For example, I picked up a paper yesterday morning and there was
a disclosure about Mr. Vesco. Did any of the agents uncover that
kind of information when they were asking questions of Mr. Stans
or Mr. Mitchell or anj^body else?
Mr. Gray. On Vesco?
Senator Bayh. The funds, all of that cash that was utilized to
support the operation.
Mr. Gray. The only thing that would be close and similar to it,
but perhaps not on all fours, would be the Ogarrio checks totaling
$89,000 from the drafts in Mexico City.
Senator Bayh. The disclosure made yesterday by Mr. Sears, I
think, was from New Jersey.
Mr. Gray. Vesco? That is on Vesco?
Senator Bayh. Yes.
It is fair to say that this is probably pertinent because you were
after not only who did it, but who supported it, financed it, who put
the gasoline in the tank? Either Mr. Sears was not telling the truth
yesterday or Mr. Stans or Mr. Mitchell were not telling the truth,
or they were not asked the right questions.
Mr. Gray. Well, as I understand right now, although I have not
followed Vesco, I asked if we were involved in Vesco, that is, in the
SEC investigation, and we are not in Vesco at the moment. We have
not been asked to get into Vesco.
Senator Bayh. Did anj^^body in the process of investigating, in asking
these questions, ever ask where did the money come from to pay
the salaries of those characters over at the Watergate?
Mr. Gray. Yes, we tried to find that information out. Senator, sure.
Senator Bayh. And
Mr. Gray. We found, the most that we could find, were the authori-
zations for these so-called secret funds that Jeb Magruder is alleged
to have authorized in the sum of $250,000 that he kept in the safe.
We did not go into the contributions aspect of it, that is, under the
election laws. We do not go into that without the specific authoriza-
tion and direction of the Department of Justice under a Department
of Justice order that is some 15 years old with regard to election laws.
Senator Bayh. But as far as part of the
Mr. Gray. I think, and maybe I am not really understanding you,
you are asking me did we check to see about contributions, who was
making contributions.
Senator Bayh. You felt that your mandate was the violation of that
communications statute?
Mr. Gray. That is right, su*.
Senator Bayh. It would seem to me that part of this interrogation
would be to find out not only who did it but where the money came
from to make it possible to do it.
275
Mr. Gray. I do not entirely agree, Senator Bayh. I think we had to
fold out where the money came from and I think we found out where
the money came from. The $250,000 basically was a basic nut in the
Committee to Re-Elect the President, the fund authorized by Jeb
Magruder initially when this operation, this intelligence-type opera-
tion, was set up.
Senator Bayh. What sort of committee rule are we operating under
here?
I have about another 5 minutes of questioning. I do not want to take
that if it is going to come out of your time.
Senator Tunney. The chairman mdicated to Senator Kennedy that
the hearmg would continue until 4:15.
Senator Bayh. I see the clock up there says 4 o'clock.
I will yield to the Senator from California with the understanding
that unless our witness gets tned and unless that clock speeds up I am
going to continue this luie of questioning for about another 5 mmutes.
Senator Tunney. I cannot go mto all my questions and so I will take
just 5 minutes of the time and then, Senator Baj'h, you continue.
Later on, if next week Mr. Gray is back, I will have an opportunity to
ask him some other questions with regard to procedures.
Mr. Gray, there were allegations that files of the Democr^itic
Presidential candidates were turned over by the FBI to the White
House last year. Do you have any information on that?
Mr. Gray. No, sir, and if any such action was taken it was done
totally, completely without my permission, behind my back, under the
table, and I doubt very, very much that that was done. I would be
very, very surprised.
Senator Tunney. But you were aware of the allegations?
Mr. Gray. Oh, yes, I was aware of the allegations and, of course, I
am aware, Senator Tunney, of a lot more allegations regarding a whole
lot of other things that have been done between the FBI and the
Wliite House, not necessarily just in this administration but in prior
administrations.
Senator Tunney. And you looked into that matter, I assume, and
you found, to your satisfaction, that it was not done by anyone?
Mr. Gray. I cannot sa^^ specifically that I looked into that matter.
But I have given enough admonitions and have expressed myself
strongly enough in the matter of telling the truth and giving me all
the facts, and laying it out, "Do not hide anything from me, it ^^^ll
go harder for you and I will come doAvn just as hard as I can." In
operating in my position, I have to have the absolute virgin truth
because that is the only thing that is going to stand up. So I would
be very surprised. I think ever3^body in the FBI has gotten that
message now.
Senator Tunney. You did not do it 3^ourself and you did not author-
ize it and you know nothing about it?
Mr. Gray. Absolutelj^^ not, sir, and I will once again state, sir, that
I would be very surprised if this occurred.
Senator Tunney. If it did occur it would have occurred at a lower
echelon in the FBI?
Mr. Gray. Senator, I do not even like to think that it occurred,
but I will answer your question by saying if it is possible, because I
do not — -you know, I cannot say I have that kind of dictatorial
Senator Tunney, Yes, I do not know what happened either.
276
Mr. Gray. The men and womiin of the FBI, I just feel I know them
too well that thej^ would do this kind of thing.
Senator Tunney. Wliat about the investigation that was done on
Daniel Schorr for a job that he did not even know that he was going
to be appointed to?
Mr. Gray. I do not know anything about that other than what I
have read in the paper, sir.
Senator Tunney. Was there an investigation?
Mr. Gray. I do not know. I have not checked it. I will have to
check it for you.
Senator Tunney. Would you check it?
Mr, Gray. Yes, I will. I have not even looked.
Senator Tunney. And would aou also check to see if there was a
turning over of files of Presidential candidates to the White House?
Mr. Gray. Yes, sir.
(Mr. Gray subsequently submitted the following document for the
record :)
JNIr. Gray. No files or other information concerning Presidential candidates
were furnished to The White House last year.
Senator Tunney. Do you kno^\■ whether there was any request
of any kind, by the White House, for files on the Presidential
candidates?
Air. Gray. Not one single request A\as made to me and, if it were,
I think it is well known that I would have said no.
wSenator Tunney. Was there any request for an FBI investigation
of Danie] Schorr?
Mr. Gray. That I do not know. I a\ ould have to check that record
to see if an applicant-type investigation was requested, and I am
going to have to see if there was paper on it.
(Mr. Gray subsequently submitted the following document for
the record :)
Mr. Gray. An investigation of Daniel Louis Schorr was requested on August 19,
1971, by a member of The White House staflf authorized to request Federal
personnel background investigations. The investigation was requested as a
routine background investigation for possible Federal appointment in which
inquiries are made regarding a person's character, loyalty, general standing, and
ability. The investigation was leferred to our field offices but no inquiries were
conducted until the morning of August 20, 1971. Mr. Schorr was contacted at
approximately S:3u a.m. on August 20, 1971, to obtain appropriate background
data. He was informed of the investigation and later that morning made back-
ground data available to us. At approximately 3:00 p.m. on the same day, we
learned from officials of the Columbia Broadcasting System that Mr. Schorr
desired the investigation tc be discontinued. The investigation was discontinued
that hour pursuant to instructions from The White House. Prior to the dis-
continuance of our investigation, twenty-fi\'e persons were interviewed concerning
Mr. Schorr.
Senator Tunney. Would you know about it if there had been
such?
Mr. Gray. During my tenure in office?
Senator Tunney. Yes.
Mr, Gray. Absolutely, sure, that is one of the things that the
men and women in the Bureau would probabl}' bring to my atten-
tion and when it was completed I woidd have to sign out for it and
send it over to the White House. I think. Senator Tunney, you are
aware this occurred before I came to the FBI.
Senator Tunney, I am glad you brought that out.
277
Mr. Gray. Yes.
Senator Tunney. I was not aware of it.
Mr. Gray. Oh, it did. I was not in the FBI at the time.
Senator Tunney. Just one final point. When these files are sent
to the White House, investigative files are sent to the White House,
at a request of a White House counselor, is there any restriction on
the use of these files? Is there any restriction as to which White
House counselors can see them?
Mr. Gray. Yes, sir. I would like to clarify a point I made earlier.
We cannot really use the term "files." We have to talk in terms of
exactl}^ what we send: is it a summar}^ memorandum, a letterhead
memorandum, an FD-302, teletype, or do we bundle the whole in-
vestigative file together, consisting of every single piece of paper that
has been generated, and send it over? The latter we do not do. In
fact I sent, in this case, first a letterhead memorandum and I would
limit this information to the counsel to the President for a specific
reason. I did in this case when he was charged with a specific respon-
sibility' b}^ the President, or to Mr. Ehrlichman or to ]Mr. Haldeman,
not everybody in the White House. Nobody beyond those three will
ever be able to call me and request anything from me because they
mil not get it from the Federal Bureau of Investigation.
Senator Tunney. Is it for their eyes only or is it for the eyes of all
three?
Mr. Gray. No, I usually give it to the individual for his information
and the President's information.
Senator Tunney. For his information only?
Mr. Gray. Because he is, Senator, specifically assigned the task by
the President and that is why I send it to him.
Senator Tunney. Do you know whether the President ever sees it?
Mr. Gray. No, sir, I do not.
Senator Tunney. You do not?
jNIr. Gray. I know in the case of the Watergate that John Dean
made personal reports direct to the President because he told me he
did.
Senator Tunney. ]Mr. Gray, I have no reason in any way to doubt
your integrity. I think that you have handled 3'ourself here as a person
who is speaking the truth.
But one of the reasons that I feel strongly that we ought to have
Mr. Dean come down and testify to the committee, and perhaps
Mr. Colson, is that I am shocked, quite frankly, at the possibility
that something that you, as Director of the FBI, send to the White
House could be used by W^hite House counselors to disseminate to
a man like Segretti, or possibly' to someone like Dita Beard or to the
ITT. It seems to me that in any procedures in which these classified
documents in the FBI are sent to a White House staffer for the pur-
poses of briefing the President, they should remain completely con-
fidential, and the situation in which there is a possibilitv that thev are
disseminated wideh^ within the White House staff or dissemmated
to third parties outside the White House is terrible.
Mr. Gray. I have no reason to believe that occurred, because
in m_v initial discussions with Mr. Dean he and I agreed these woidd
be safeguarded with the greatest care that he (jould afford them. This
was discussed between us. I think we have got to realize, too, Senator
278
Tunney, what was delivered. The principle you are stating is a sound
one. I agree with it. But I think in this specific case what were delivered
were FD-302's and teletypes as a part of the serials that I have in
my possession, and actually, if a disclosure was made to Mr. Segretti,
according to this newspaper article, it was a disclosure of what Mr.
Segretti had already said to us. But I agree with your principle 100
percent.
Senator Tunney. I am glad to hear that. I think that one reason
for having Mr. Dean, and perhaps Mr. Colson, be here is to indicate
just what they do with documents that you send, or any other FBI
Director sends, to the White House.
Mr. Gray. I have not ever sent any to Mr. Colson.
Senator Tunney. Yes, but I think it is an outrage that these
secret documents get into other hands, and we have had enough
allegations that they did get into other hands that there is real doubt
in my mind as to whether or not they did.
I am con\anced, from your testimony, that you did not do it, but
I am very deepl}" concerned about the dangers that exist.
You report to the President and you report to the Attorney General,
and I can understand your giving them anything they want that you
have in j'our files. But v.hat I do not understand is a procedure at the
White House level that is so sloppy that this is a possibility that these
documents could be made available to third parties and, although you
say you do not know whether they were or they were not, you would
have to accept Mr. Dean's word. I do not think as a U.S. Senator,
that I n.ecessarily v\ ould have to take their word as it was expressed
to 3^ou.
Mr. Gray. No, I think your point there is well taken and all I can
tell you, Senator, is in the discussions with Mr. Dean both of us agreed
heartily that these have to be safeguarded with the tightest security
that ^^■e could give to them. I made this very, very clear and he was in
complete accord. I have no reason to believe that he did not do just
that.
Senator Tunney. If you found yourself in a position, if you are
confirmed, in a position where you would be compromised would you
be prepared to resign?
Mr. Gray. Senator, I came out of the Navy with a good reputation,
and I have tried to maintain that good reputation. When I was a boy
gro^\ing up my mother said, "Pat, the world can take everything from
you but your reputation and your education", and if I thought that
was being tarnished I would return to southeastern Connecticut and
go back into my law firm and I really mean that.
Senator Tunney. You indicated that once you almost resigned
from the Justice Department?
Mr. Gray. Yes, that is correct. I came close to it.
Senator Tunney. Would you go into it?
Mr. Gray. Senator Bayh and I got into it and we will discuss it
and I will lay it all out for you.
Senator Tunney. I am sorry.
Senator Bayh. I have three or four more questions.
Senator Gurney, do you have anything that you would like to ask
here?
279
Senator Gurney. I just have a surveillance role here. [Laughter.]
Senator Bayh. I thought that was Mr. Gray's work.
Mr. Gray. I thought that was a role that nobody wants and that
Senator Bayh. That is the role 3'ou have.
Mr. Gray. Yes.
Senator Bayh. As I recall the Vesco business, and I don't want to
put words in your mouth, but did you reach the conclusion in j^our
investigation that in that safe there was $250,000, the intelligence kitty
that had been authorized by Mr. Magruder, and once you reached that
point that you felt you had no responsibility for determining how that
money got there?
Mr. Gray. No, sir, we didn't. We tried to find out how it got
there, through the channels Avithin the Committee to Re-Elect the
President and who authorized it, where did it come from, v/hat kind of
money was it, but we didn't get to who gave it except in the case of
the $89,000 and the $25,000.
It was $114,000 involved— $89,000 in the Ogarrio checks and the
Dahlberg $25,000 check. But what we really nailed down were the
bills found on the Watergate subjects, and my men came to me and
said, "We can't trace all these bills." I said, "You go to every single
bank and talk to ever}^ single teller," and we did that all through that
Pennsjdvania area. I told them every bank, and every teller, tr}^ to
lay it out, fuid where those dollars were and who they gave them to
that those tellers can identify, but we didn't get to who contributed it.
Senator Bayh. Did the agents ask Mr. Mitchell or Mr. Stans
where it came from?
Mr. Gray. I don't know that they asked them where it came from.
I will have to ask that question and provide that answer for the record,
and I will.
Senator Bayh. I Avish you would,
Mr. Gray. Yes, sir.
Senator Bayh. Also what the answer was.
Mr. Gray. My recollection is that Mr. Mitchell's statements to our
agents were that he had no knowledge whatever of the financial ar-
rangements, that this was Mr. Stans' responsibility, and in talking —
I will provide it for the record — but in talking with Mr. Stans, as I
am trying to remember those interview reports, I don't believe that
we asked him for specific contributors and names of contributors, but
I am going to have to check the FD-302's, reports of interviews, and
provide that information, sir.
(Mr. Gray subsequently submitted the following document for
the record:)
Mr. Gray. After checking the FD-302 setting forth Mr. Mitchell's interview,
I find my recollection mentioned above was accurate and that Mr. Mitchell told
our Agents he had nothing to do with the financial aspects of the Committee to
Reelect the President and this was handled completely by Mr. Ma,urice Stans.
On July 14, 1972, Mr. Stans was contacted specifically regarding the $100,000
contribution to the Committee which was in the form of four bank drafts payable
to Mr. Manuel Ogarrio, totaling $89,000 plus $11,000 in cash. Mr. Stans said that
he had been advised by Mr. Sloan of the receipt of the $100,000 on April 6, 1972,
and that tlie amount was accounted for as cash on hand as of April 7, 1972. He
said he believed the $89,000 in bank drafts had been given by Mr. Sloan to Gordon
Liddy and the cash was later deposited by the Committee. He was also asked
about the $25,000 cashier's check from Kenneth Dahlberg and he said he believed
Liddy had cashed this check and the Committee had received the funds and he
280
thought the $25,000 was inckided in a deposit to the Committee account made
May 30 or 31, 1972. He was asked if there were any written records concerning
the "^$25,000 cashier's check or $89,000 in bank drafts and Mr. Stans said he liad
seen none but had been advised by INIr. Sloan the Committee had actually received
the cash for these. All information j^ertaining to the contribution of funds was
furnished to him orally bv INIr. Sloan and Mr. Stans had received no receipts or
memoranda from INIr. Sloan docimienting either the $25,000 or $89,000 bank
drafts. Mr. Stans was asked who I\Ir. Sloan had to account to for the funds and
Mr. Stans replied he accounted to no one. ^Mr. Stans was again questioned con-
cerning fimds on July 28, 1972. At that time he said he was aware there was a
considerable amount of cash on hand maintained in the office, that he never had
occasion to draw from this cash and Mr. Sloan was in full charge of the cash on
hand. He said the cash varied fom $200,000 to $350,000 and he believed the cash
was ultimately deposited in the bank about May 30, 1972, and he beheved that
the deposit was for approximately $350,000.
Senator Bayh. In listening to the discussion relative to why ]\fr.
Hakleman was not asked, not interviewed, not questioned, and Mr.
Ehrlichman was, I came awa,y a little bit confused. As I have studied
the White House pecking order in the organizational charts down
there — and you are much more familiar with them than I am — Mr.
Chapin, Mr. Magruder, Mr. Colson, Mr. Strachan, even wSegretti
and Hunt were all in the line of command directly responsible or
ultimately responsible to Mr. Haldeman, not Mr. Ehrlichman. It
would seem if we were trying to fuid out just how far this thing had
gone, who had the ultimate authorit}', that maybe that man should
have been questioned.
Mr. Gray. That is a good question, and it is one that I asked in
preparation for these hearings. It is one that I did not ask during the
conduct of the investigation because at no time were there any leads
developed that would lead us to him. It just wasn't set out. Don't
think there are not an awful lot of people in the Federal Bureau of
Investigation who are frustrated that we have not been able to really
find out what we hoped we would be able to find out.
Senator Bayh. Did an^'body at any level of government suggest
to you that 3'ou shouldn't call — you shouldn't interrogate Mr. Halde-
man?
Mr. Gray. No, sir; that was not done. Mr. Kinlev reminds me
that Mr. Hunt and Mr. Liddy worked on Mr. Ehrlichman's side
and not Mr. Haldeman's. But that is a small point. The principle
you state is what is important here. We just, Senator, did not have
the leads or evidentiary pattern that pointed to any involvement
whatsoever of Mr. Haldeman, and no one told me that I could not
interview him at all. I had no restrictions placed on me.
Senator Bayh. I won't pursue that further, but you have Ehrlichman
and Haldeman, whatever their responsibilities are. In a Senator's
office, if you found two or three guys working in my office who have
their hands in the cookie jar, or part of a conspiratorial thing as this
one was, someone would want to know who was the boss.
Mr. Gray. That is correct. We engaged in a lot of theories through-
out this case. There were a lot of discussions about it, and there were
many theories.
Senator Bayh. But nobody ever thought to ask if the Chief of
Staff of the White House had any information?
Mr. Gray. No, sir. No, sir. It was never suggested and never came
up; and in the conferences that we have had to review the entire
Watergate investigation, this is the explanation that we arrived at.
281
I believe it to be a genuine and sincere explanation. At no time did I,
reading the teletypes and the interview reports, think that anything
pointed to Mr. Haldeman.
Senator Bayh. You referred to the FD-302's and the teletypes.
Could I ask a couple of questions about what Mr. Baldwin was doing?
He was interviewed? I understand he was questioned?
Mr. Gray. Alfred Bald^\^n?
Senator Bayh. Yes, who was across the street.
Air. Gray. Yes, sir.
Senator Bayh. Was this type of information among the information
that was passed on to Mr. Dean prior
Mr. Gray. Sir?
Senator Bayh. Was the type of information that Mr. Baldwin would
have supplied, was that the type of information that would then sub-
sequently have been passed on to Mr. Dean?
Mr. Gray. That I don't know, sir. We don't know where that in-
formation went. You are talking about the information that he re-
ceived through his monitoring activities?
Senator Bayh. Yes.
Mr. Gray. And that was passed along to Mr. McCord who is al-
leged to have typed memorandums for delivery to some individuals.
Senator Bayh. No, sir; I am not talking about that.
Mr. Gray. No?
Senator Bayh. I suppose that when Mr. Baldwin was interviewed by
agents of the FBI, he was asked what he was doing and what kind of
conversations he overheard; is that an accurate assumption:
Mr. Gray. Alfred Baldwin was asked those questions; yes, sir.
Senator Bayh. Now, in the FD-302's and the teletypes that were
sent along to Mr. Dean, was the type of information contained in any
interview of Mr. Baldwin passed on to Mr. Dean?
Mr. Gray. I will have to take a look at the information that was
passed out. I have it in a safe in my office. I will have to take a look at
it, and look at the FD-302 and see what was sent out from Baldwin,
and give you a precise and accurate answer and supply the informa-
tion.
(Mr. Gray subsequently submitted the following document for the
record :)
Mr. Gray. After checking, I find that Baldwin informed us as to the nature of the
overheard conversations. Mr. Dean was furnished the following: An FD-302
setting forth an effort to interview ISIr. Baldwin on June 21, 1972, when he
declined to be interviewed on the advice of his attorne}- ; an FD-302 which set
forth an interview on July 5, 1972, with Mr. Baldwin at which time photographs
were displayed to him; 'two FD-302s containing results of interview of Mr.
Baldwin on July 10, 1972; and a summary teletype dated July 10, 1972, contain-
ing a resume of I\Ir. Baldwin's interview. The July 21, 1972, summary letterhead
memorandum which was furnished to the Attorney General contained a s.ynop-
sized version of Mr. Baldwin's July 10, 1972, interview and I believe that the
Attornej' General gave Mr. Dean a copy of that memorandum.
Senator Bayh. All right, I appreciate that very much.
Mr. Gray. You know, Senator Bayh, we don't have in our 302
the exact type of information, I am sure of that, but I will check it.
I am trying to rack my memory to be sure, but I will check it and
give you what we have.
Senator Bayh. The reason I asked is that I am convinced, as Sen-
ator Tunney has said and as I think I said earlier, that you are givine
282
us a straight story as you see it, although we may differ as we look at
the facts.
Mr. Gray. That is natural. You know this is one of the neatest
cases to have when you come right into the FBI, a real great thrill
to have this Watergate case. [Laughter.]
Senator Bayh. That probably won't be the last one you have.
Mr. Gray. No; I don't think I will ever have another one like this,
believe me.
Senator Bayh. At least not for 4 more years. [Laughter.]
Mr. Gray. I would hope for 400 more.
Senator Bayh. Let the record show that the Senator from Indiana
laughed when he said that.
Mr. Gray. Smiled.
Senator Bayh. Just to follow this through one last time — I don't
want to beat it to death, because you said you will submit this. I have
had a chance to look at you, and a chance to meet you on a couple of
occasions, and frankl}^ I wouldn't know Mr. Dean if he walked into
the room. I am inclined to feel, as Senator Tunney says, there could
be a very weak link there, that information that was given to him, we
have a lot of stories that other people got it. I would, just sitting
here and knowing everything I know, which is not nearly as much as
I ought to know, I would tliink ]Mr. Dean leaked it rather than some-
body do'wm at the FBI. I would say that is where the leak was rather
than somebody down at the FBI, but we don't know that.
Mr. Gray. We don't know. But what I am sajdng, Senator, and what
I am betting on, is the probability it didn't occur.
Senator Bayh. You see the reason I would really like to know what
was in that type of information you gave. July 17 was the first memo,
was it?
Mr. Gray. No, July 21.
Senator Bayh. July 21.
Mr. Gray. It was a letterhead memorandum that went to the
Attorney General. As I said, I don't know as a fact, but I believe that
letterhead memorandum also was sent over to John Dean.
Senator Bayh. Now, you mentioned, I think, that continuing
information was given Mr. Dean and the Attorney General as the
investigation proceeded?
Mr. Gray. That is right. Not in the earl}^ beginning information
wasn't given to Mr. Dean.
Senator Bayh. No, after the 21st.
Mr. Gray. Oh, yes, after that.
Senator Bayh. The first memorandum was the 21st, and then how
often was followup information given?
Mr. Gray. In the form of the 302's and the teletypes as I would
read them, and be sure exactly what we were giving, I would transmit
them to him and get them back. He didn't keep them for long periods
of time, you know. This was not a thing where I sent them off and he
kept them and held on to them.
Senator Bayh. This could have been done on a daily basis?
Mr. Gray. No, it was not done on a daily basis because it took
some time to read those. You know the}'' are thick— the}^ are thick
files like these, Senator.
283
Senator Bayh. What reall}^ concerns me, again — and is not con-
cerned directly with you — is what happened, where the weak Hnk
might be. If that information in there contained the substance of Mr.
Baldwin's monitored conversations, that was political information,
conversations of political officials the other side heard. To be dis-
seminated in the midst of a campaign would be a tough thing, par-
ticularl}^ if that information was the result of an illegal \\-iretap. It
should not be disseminated at all.
Mr. Gray. But, you see, Senator, this had all been acquired, as
we understand it, from our interview reports these fellows had
monitored from about the 29th of May, as I recall the interview
reports, until some time in the middle of June.
Senator Bayh. So the White House alread}^ had this information?
Mr. Gray. I don't know that. I don't know who had that. We have
not been able to establish that, but what I am saying is there was a
procedure being pursued there. Senator. So this was not something
that we were throwing into the domain, so to speak, for the first time.
Somebody had received that information earlier, and I don't know
who. All I know is that we did send these over to Mr. Dean, as I
testified. We tried to find out what happened with that information.
Senator Bayh. Let me ask as a lawyer — I don't know the answer
to tliis question, but I am going to find out — there is a statute that
we are both famihar with which prohibits disclosing communications
that are received as a result of an illegal wiretap. Does that statute
provide that these provisions are waived if there has been espionage
in which 3"ou have reason to believe tliis information has already
been disclosed?
Mr. Gray. No; I wouldn't sa}^ that, not with reference to that stat-
ute. Senator, I wouldn't sa}^ that, but I would have to research it.
That would be my instantaneous reaction.
(Mr. Gray subsequentl}^ submitted the following document for the
record :)
Mr. Gray. I have had the matter researched, Senator Bayh, and have been
informed that the statute, Title IS, U.S. Code, Section 2.ill, provides no waiver
of the prohibition against disclosure when there is an espiona2;e charge involved.
In fact, the statute (Title 18, U.S. Code, Section 2515) specifically prohibits the
use of intercepted wire or oral communications as evidence before any court,
grand jur.y. Department officer, agencies, regulatory bod.y, legislative committees,
or other authority of the United States. Therefore, if an espionage charge is
involved and criminal prosecution is contemplated, the statute would prohibit
use in the prosecution of evidence obtained through luilav.ful intercepts.
Senator Bayh. Mr. Gray, you have been very kind.
As I said, I will not proceed with questions on the "Vvliit ten-Anderson
matter because I would suppose, after talking to the chairman, that
you would be given the opportunity to come up and rebut any of the
allegations that are made.
Mr. Gray. If the committee specifically desires me to come, I
will come, Senator.
Senator Bayh. I would not raise that if we had not been down this
pike before, that unless we get a majority of the committee to have
witnesses come back, they would not come back.
Mr. Gray. No. Wliat I am saying is I am at the call of the com-
mittee. You know this is a committee of the U.S. Senate. If they
want me to come up, I will jolly well be here.
284
Mr. Bayh (presiding). I understand that my authority now is to
recess the hearing until 10:30 on Tuesday morning.
1 appreciate your courtesy.
1 understand vou are still the witness. Is that the way you interpret
it:
Mr. Gray. Yes, sir; 1 am.
Senator Bayh. Thank you for your courtesy.
Mr. Gray. Thank you, Senator Bayh.
(Whereupon, at 4:45 p.m., the committee recessed, to reconvene
at 10:30 a.m., Tuesday, March 6, 1973.)
NOMINATION OF LOUIS PATRICK GRAY III
TUESDAY, MARCH 6, 1973
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The committee met, pursuant to recess, at 11 :05 a.m., in room 2228,
Dirksen Senate Office Building, Senator James O. Eastland (chairman)
presiding.
Present: Senators Eastland, Kenned^^ Hruska, and Gurney.
Also present: John H. Holloman, chief counsel, and Francis C.
Rosenberger, Thomas D. Hart, and Hite McLean, professional staff
members.
Senator Eastland, The Chair and each member of the Judiciary
Committee has received a letter from the American Civil Liberties
Union. I will read it into the record.
(The letter referred to follows :)
Washington National Office,
American Civil Liberties Union,
Washington, D.C, March 6, 1973.
Hon. James O. Eastland,
Chairman, Senate Judiciary Committee,
New Senate Office Building, Washington, D.C.
Dear Senator Eastland: Following the course of the Senate Judiciary Com-
mittee's hearings on the confirmation of L. Patrick Graj^, we have become con
cerned over certain developments which maj- affect the rights of individuals to
their privacy' and to procedural fairness during this legislative investigation.
Our concern has been triggered by the fact that no one has publicly questioned
the offer by Mr. Gray to turn over all of the FBI files on the Watergate case to
members of the Senate. These files undoubtedly contain information about indi-
viduals which should not be disclosed without careful consideration of their rights.
Questions about such information, and request for documents, should be narrowly
drawn. Procedures for the handling of such information should also be carefully
constiu3ted.
The ACLU has for many years opposed legislative investigations which ignored
the rights of individuals to privacy and to procedural fairness. We have developed
the enclosed set of guidelines wliich we believe should govern the disclosure of
information about individuals in the course of such investigations. The most
important of these guidelines include:
No mandate, however specific, may authorize a congressional committee to
investigate merely for the sake of exposing unorthodox views or criminal activity.
Congress has no power to expose individuals, but only to conduct legislative
investigations pursuant to its constitutional powers.
Before airing defamatory, prejudicial, or adverse information, a committee
should screen such material in executive session to determine whether or not it is
reliable. The individual whom the information tends to prejudice should be prop-
erly notified and given an opportunity to appear before the committee in execu-
tive session with other witnesses if he so requests, or with other evidence rebutting
tlie information. The same requirement of fair notice ptntaining to witnesses at
public hearings should apply here, and should include a ban on disclosure of the
(285)
Ol-S.-^l— 73 19
286
names of witnesses in advance of their appearance. There should be an absolute
prohibition on the publication of information discussed at the session, prior to a
determination of whether to hold a public session at which the defamatory informa-
tion will be presented. An investigating committee should not recall for a public
hearing a witness who has claimed his privilege against self-incrimination in
executive session in response to certain questions put to him, merely in order to
ask him the same questions publicly.
If adverse testimony is given in public session after the committee has deter-
mined in executive session that it is appropriate to the investigation, any person
about whom such testimony is offered should be afforded an opportunity to:
(a) Testify or offer sworn statements in his behalf ;
(b) Subject the witness offering prejudicial testimony to cross-examina-
tion; and
(c) Obtain the assistance of the investigation committee in compelling the
attendance of witnesses and the production of docvmients reasonably neces-
sary to rebut the charges against him.
Implementing these safeguards, which relate to the public use of material in
FBI documents, would be impossible if raw FBI data were simply handed over
to your Committee without clear restrictions on its dissemination within the Senate
prfor to any public disclosure. For example, we would hope that you would require
that only a single copy of any document be transmitted, with the understanding
that it may be examined but not copied and that no disclosure will take place prior
to compliance with the safeguards outlined above.
We do not offer these suggestions to impede either the search for the truth or the
effort to determine whether L. Patrick Gray should be confirmed as Director of the
FBI. However, we believe that those inquiring into the way in which the FBI has
conducted an investigation should themselves act with the utmost fairness — that
same fairness which, we trust, members of the Senate would exercise if the files in
question were those which Mr. Gray has testified exist on members of the Congress.
We, therefore, request that you take steps to insure that safeguards along the
lines we have suggested be established to protect individuals who may be m.en-
tioned in any FBI documents prior to the transmittal to Congress of any additional
FBI information.
We are also concerned about the possible disclosure of the contents of the
illegally overheard conversations. We represent tho«e individuals whose telephone*
were tapped and who participated in a majority of those conversations which were
illegally intercepted in the Watergate incident. As you know, the United States
Court of Appeals for the District of Columbia Circuit issued the attached orders
during the Watergate trial suppressing the contents of the illegally intercepted
telephone conversations and preventing their disclosure.
Further disclosure of the contents of the conversations to members of the Senate
and to anyone else would be a clear violation of the federal wiretapping law, is in no
way relevant to your inquiry into the qualification of Mr. Gray, and would, in the
words of the Court of Appeals, "frustrate the purpose of Congress in making
wire-tapping a crime."
To insure that the contents of these conversations are not illegally disclosed, we
ask that you take steps to make it clear to the FBI that under no circumstances
are the contents of the conversations to be contained in any information trans-
mitted to the Senate in the course of this investigation.
We look forward to hearing from you on these matters.
Sincerely,
Charles Morgan, Jr., Director.
Senator Eastland. Of course, that is a decision the committee'
would make.
Senator Hruska. Would the chairman yield for a couple of ques-
tions of Air. Gray?
Air. Gray, you have heard the letter read, and also have a personal
copy which was sent to you by Mr. Morgan.
I would like you to develop further the extent of your offer for
availability of the FBI files to which reference is made. My recol-
lection is that you said they would be available to members of this
committee and to Members of the entire Senate, to the exclusion of
staff members and assistants; is that correct?
287
TESTIMONY OF LOUIS PATEICK GRAY III— Eesumed
Mr. Gray. Yes, Senator Hruska, that is correct.
The only thing I added was that they would be in the custod}" of
two knowledgeable agents, special agents of the Federal Bureau of
Investigation, who would answer any questions that a Senator would
want answered. We are very proud of this investigation and feel that
we carried it through in accordance mth the standards and customary
procedures of the Federal Bureau of Investigation, We pushed it
aggressively and vigorously.
Senator Hruska. Was it contemplated by you and is it contem-
plated by you now that those files remain in the custody of the FBI
during this examination?
Mr. Gray. Yes, sir; that was a clear contemplation.
Senator Eastland. Of course, that is always true?
Mr. Gray. That is correct, \ir. Chairman.
Senator Hruska. Would the files be brought to the Capitol for
the purpose of examination or would the Members of the Senate have
to go to FBI headciuarters?
Mr. Gray. Senator, it was my intention in makmg that offer that
the agents would bring those files to the Senator.
Senator Hruska. But they would not be "transmitted" in the sense
that the letter repeatedly suggests b}^ the use of words like this:
"to turn over all of the FBI files to ^lembers of the Senate * * *
to deliver the reports to the Senate?"
It would not be a delivery since custody Avould be retained by the
FBI at all times and without interruption; is that correct?
Mr. Gray. That is correct. When the Senator had concluded his
examination for that particular period, the special agent would pick
up the files and return them to the FBI.
Senator Hruska. And the FBI agents would be present in the room
to answer questions?
Mr. Gray. Yes, sir; they would be present to answer any questions.
Senator Eastland. I know that every file I have ever seen, and
that is normally several times a week, I see that file in the presence of
an official of the Justice Department.
Mr. Gray. That is correct, Mr. Chairman. That is our procedure.
Mr. Chairman, if it is appropriate at this time, I do have a statement
that I would like to address to the chairman and members of the
committee, sir,
Mr. Chairman, I believe the record will show that I have attempted
to answer every question that has been put to me b}^ this committee.
When I have not been absolutely certain of the facts, I have promised
to supply them and I have supplied them,
I accept and I welcome this probing incpiiry. It is a mark of the
importance you very rightly attach to the high office to which I have
been nominated.
In particular, you now have before you in the testimony given to
date a thorough record of the manner in which the FBI conducted the
Watergata investigation — as aggressive and as exhaustive an investi-
gation as the FBI has ever conducted or is capable of conducting
within the four walls of its juris li Lotion.
I placed no restrictions oi our agents in the conluct of this in-
vestigation, fn fact, I ordered an aU-DUt effort and we turned in just
that kind of performance.
288
The complete substantive record lias also been made available to
the committee members. I agreed to provide this record in the custody
of two experienced agents and promised that the agents would answer
any questions a Senator might have as the Senator went over the
record.
At some point, however, it seems to me that a critically important
distinction must be drawn, Mr. Chairman.
Every procedural detail of the Watergate investigation is fair game
for this committee. So is every detail of FBI organization and pro-
cedure across the board. To develop that record is to develop the
record of my conduct and performance as Acting Director of the
FBI since May 3, 1972. That, of course, is what these confirmation
hearings are all about.
The substantive record of the Watergate investigation, on the
other hand, raises very different questions. The Senate, by formal
resolution, has constituted a select committee to pursue that inquiry
down every possible avenue. I feel certain we all would agree that,
under the chairmanship of Senator Ervin, that resolution will be fully
and ably discharged, and under such procedural safeguards as will
protect innocent persons who were simply bystanders.
It is my further understanding that under these safeguards the
select committee will have access even to the grand jury proceedings.
I am also concerned, Mr. Chairman, that I may be impacting upon
national security, constitutional due process, and the right to privacy
as I respond to questions from the Senators of this committee. I know
that I am reaching the point where I may be publicizing FBI investi-
gative techniques and tactics. I also know that I run the clear risk of
making inadvertent disclosure of grand jury testimony that has been
utilized in our investigation.
I beheve that guidance from the committee is required in ordei that
matters of national security are not discussed in the public forum, that
I do not in any way affect any motions or appeals that may grow out
of the convictions in the Watergate trial, and that I do not breach the
right to privacy of those persons whose names and activities are con-
tained in our raw interview reports.
Let me also say, Mr. Chairman, that people will talk to the FBI.
The proof is here in this investigation: they will and they did furnish
information one -on-one with our agents. But they will not continue
to do so if we continue to spread this information on the public record.
I submit, Mr. Chairman, that a critical distinction must be drawn
between FBI procedures, on the one hand, and the substance of its
investigative findings on the other. Within the context of these con-
firmation hearings, and with deference to the wdll of this distinguished
committee, I believe the time has come to draw that distinction.
Senator Kennedy. Do you think in response, Mr. Gray, that we
ought to put the hearuigs over until after the investigation or after
the trial?
Mr. Gray. Senator Kennedy, I tliink tliis committee has a very
difficult choice. On the one hand
Senator Kennedy. Wliat is your preference?
Mr. Gray. Senator Kennedy, may I please answer your question.
On the one hand, you have the responsibility to look into this matter
procedurally and to see that Gray did the job that the Senate and every
person in our Nation has the right to expect.
289
On tlie other, you are concerned about the substance. You have
the select committee to look into that.
Now, in the middle stands your humble and obedient servant,
Pat Gray, and I will admit that you have a tough decision.
Do you want to buy a pig in a poke?
But I submit I have sat here, I have answered every question, I
have promised to provide information.
I have done my level best to convince every member of this com-
mittee that he is not buying a pig in a poke.
And I tliink that each Senator's examination of our files, including
my own written notations on those files, will support and justify a
report to vote out my nomination. So obviously, I do not tliink that
this committee should wait for the results of the Ervin select com-
mittee.
This is asking a lot of you and I appreciate that.
Senator Kennedy. What is the reluctance, then, given the very
legitimate concerns you have expressed here this morning? I believe
them to be legitimate although I do not have that information in
the files at the present time, and have not even had any access to
the files at the present time, the files which have been made available
to the committee, as I understand it.
I am just wondering whether you would have any reservation
about requesting that we put off the hearing until after the appeals
have been exliausted by those that have been involved in the Water-
gate, and until Senator Ervin has an opportunity to explore this?
Mr. Gray. Yes, Senator Kennedy. I do have reservations and, of
course, they are personal reservations. But those must be subjugated
to considerations of national institutions.
The FBI needs a leader. The FBI needs to know that there is a
leader. The FBI needs to know that the individual nominated came
up here and responded to the best of his abihty to the questions
asked by the Senators. I think we have reached a point, really, where
Senators can make a judgment as to whether or not this fellow sitting
here is trying to give you every last bit of information you are
seeking, or w^hether he is sweeping some of it under the rug.
I could not sweep anything under the rug and exist within the FBI.
The FBI w^ould not let me, even if I were so inclined. I am working
with a task force of approximately 100 of the FBI's top executives,
and if there were any manipulation going on, I would be blo^vn out
of the w'ater. Those men w^ouldn't stand for it.
I do have substantial reservations, therefore, wdth regard to the in-
terests of a national institution and to the men and women wdio serve in
that institution. My personal reservations must be subjugated to
that, and they are.
Senator Kennedy. Those arguments could have been used when
you were first appointed Acting Director, could they not, about the
importance of having a leader? I suppose the committee could have
been asked to consider your nomination when you originally took
charge. It was not the choice of a Senate committee that you were
not nominated at the time you were first selected by the administra-
tion.
We are faced mth the particular dilemma not because of our re-
quest. As a matter of fact the timing was through the administration.
When you were first appointed, I imagine they could have convened
these hearings before the Watergate incident ever occurred.
290
Mr. Gray. That is correct. Your point is well taken. T think, looking
back on it, the President was \\ise. One, he sought to keep this nomi-
nation out of politics; and, two, he had a nominee who had had a lot
of leadership capabilities in his past liistory. I have worked very hard
for 10 months to learn the FBI and to come before this committee
and tell you about the FBI and to work with this committee in the
future.
So, looking back on it, even though I didn't ask for it, I think the
President was very wise not to politicize the nomination. I think he
made a wise decision. That was his decision, and yet I have to admit
your point is very well taken. I cannot argue against it.
Senator Kennedy. It would have been less political then, than it
is the way it is now?
JNIr. Gray. Looking back on it, I have to say that I think when-
ever the nomination was made, it would have been a political type of
thing, because this is the first — there has been such a paucity of infor-
mation. The legislators at the national level, both in the Senate and
the House, I think, have felt they know very little about the FBI,
and no matter when this occurred, I think we would be going through
what we are going through now.
But I tliink really you have asked an a^\'ful lot of questions, and I
have tried to respond straightaway. I have tried to establish some
kind of rapport with this committee, to convince you what type of
guy I am. But you have a tough decision.
Senator Kennedy. Would it have been any different if it were the
CIA? I don't know why you think there is more sensitivity^ necessarily
to the political issue involving the FBI than there might be in the
CIA. Do you think it is because of your association, political associa-
tion, with the President?
Mr. Gray. No, I don't. Senator Kennedy. I think it is because of
the fact that the FBI is so close to the people of the United States
and the CIA is not.
The CIA operates outside the United States, but we, the FBI, are
Avithin the United States. We are close to the people. We are well
known to the people of the United States. That is why I make the
answer that I do. Senator Kennedy.
Senator Kennedy. Just to move on. On the c^uestion of the knowl-
edge of the material, I think all of us are familiar with having men
appointed by the President to important positions, who have not
necessarily been familiar with the particular operations of the special
department and yet are able to act on these.
Mr. Brennan, Mr. Weinberger, or others. Don't you think we could
have done the same with you if we had that opportunity?
Mr. Gray. No, sir; I don't think so. Because the FBI's operation
is so completely different. It moves into our life so completely and
so thoroughly. I think if you had had me up here in May or in June,
after only 6 weeks in the operation, I would still have been pretty
close to being a babe in toy] and, even though I was working 18 to
20 hours a day, and driving these assistant directors right up the wall
with the questions I continually bombarded them with.
Senator Kennedy. Mr. Chairman, I want to go into some other
areas. I will be glad to proceed now, or in whatever order you would
like to proceed.
291
Senator Eastland. Well, if you want to change and -go into some-
thing else, Senator Hruska had some questions.
Senator Kennedy. Just on this point?
Senator Hruska. Yes.
Senator Kennedy. OK.
Senator Hruska. May I first defer to Senator Gurney?
Senator Kennedy. Was I yielding?
Senator Hruska. On this point?
Senator Gurney. Yes.
I would like to make an observation on this point. The appointing
of a new Director of the FBI is an act of the President appointing one
of his executive officers, and the completion of this act is the approval
or disapproval of the President's appointment by the U.S. Senate
acting initially through this committee.
We may have differences of opinion in the committee as to whether
we should wait and confirm the nomination after the Watergate hear-
ing has been finished, or whether we should proceed now. On that
score, it seems to me it would be a very poor exercise of judgment to
wait until the Watergate Committee is finished, because the final re-
port of that committee is not due until February of 1974, next year.
Obviously, for proper attendance to the afifairs of the country, we
need to have a Director of the FBI during that interim. But regardless
of all that — that is just my opinion, and others may differ on it— it is
a decision the committee will have to make, not Mr. Gray.
Senator Hruska. Mr. Gray, from your statement and from some
of the answers you have given so far this morning, I gather your
position is that there are two facets to this proceeding currently before
the Senate. One is the consideration of your qualifications to serve as
Director of the FBI, and, of course, the other, which is intertwmed
with it, and inevitably so, has to do with the substance and the merit
and the nature of the investigation into certain acts generally referred
to as the Watergate incident.
Now, as to the first part, isn't it true that we are concerned \yith
your history as a military man and as a public official in various
capacities and 's\dth your experience and conduct since you were ap-
pointed as i\.cting Director? We might also inquire of your ideas and
principles, since they, too, relate to future operations of the FBI.
However, in comiection with the first facet of this inquiry, is it
not true that the methods of the Bureau in investigating the Water-
gate incident have been amply demonstrated during the collection of
the report that you have made and the files that you have compiled,
and that in those files we see disclosed the nature and the scope and
thrust of the instructions that you gave to your men?
Now, would not a consideration of the actual operation of your
Department as set forth in those files, be sufficient to enable the
Senate to say, yes, he did a good job; he should be confirmed; or to
say, no, he did not do a good job; he should not be confirmed.
Is this an accurate summary of the position you have tried to
delineate in your statement and in the answers that you have given
thus far?
Mr. Gray, Yes, it is, Senator Hruska.
Senator Hruska, Will it matter too much in regard to your quali-
fications and your conduct as Director, Acting Director of the FBI,
292
will it matter too much what the final disclosures are in — that is, who
did what — that is, what Senator Ervin and his committee have been
delegated and instructed and authorized by the Senate to examine
the substance of the Watergate investigation.
Will it matter too much what the result of that study is, insofar as
your operation of the FBI is concerned?
Mr. Gray. No, sir; because I operated the FBI in accordance
with the FBI standard operating procedures, and we worked very
closely with the assistant U.S. attorneys in conducting the grand
jury, and with the Criminal Division of the Department of Justice.
We have proceeded as we would have proceeded in any major special
case, and also proceeded probably with a little bit more vigor because
of the fact that this was a unique case.
We must accept that fact, I believe — -at least I accept the fact that
it was a very unique case.
Senator Hruska. You made an offer, Mr. Gray, that every
Member of the Senate have availability to the raw files that you have
compiled in your Department. I want to say to you that I suffered
quite a setback in my thinking and felt that you made a very dramatic
and radical decision in making these available.
Proof of the misgiving on my part are now demonstrated quite
conclusively in the thoughts contained in the letter from the American
Civil Liberties Union. I don't know just what the final appraisal will
be as to the wisdom of your decision. I do feel quite certain, however,
that had you said "These files mil not be available to the Senate,"
that there would have been many howls and many angry cries of
protestation. Thus, perhaps your decision was correct, but it remains
the farthest reaching decision as to FBI files that I have personally
observed in my 20 years in the Congress of the United States. I hope
it will not serve as a precedent for other similar forays into the files
of the FBI.
Ad^r. Gray. Senator Hruska, I realized from the very first week that
I was going to face this decision. I resolved at that time that these
files were going to be made available, because it was the only way that
the credibility of this national institution, the FBI, could be pre-
served. There was no other way.
I am sure there are a lot of people within the FBI who differ with
this decision of mine. I know, from my own expsrience within the FBI,
that if these files are not handled most carefully, we are going to dry
up one of the most valuable weapons the FBI possesses, and that is
the willingness of people to talk to us because we maintain the in-
formation they give us, or at least we do everything we can to main-
tain that information, in confidence.
As a lawyer, I knew I was shattering all kinds of precedents. But
I felt this case was so different that it could not be used later as a
precedent or stare decisis matter to provide to other investigating
bodies other files of the Federal Bureau of Investigation. I took that
risk.
Senator Hruska. I would expect you to be deliberate in your
judgment and decisions. It is my hope that all Members of the Senate
who will avail themselves of the opportunity to examine these files will
honor the spirit in which the offer was made and that they will take
into consideration the fact that they are raw files and that they should
be read only for the limited purpose for which they are offered.
293
It would seem to me to be very desirable to avoid what we w itnessed
last summer when we had extended hearings on the appointment and
confirmation of the Attorney General. For w-eeks on end, we sat in
this room, but heard scarcely a reference to the name of Richard
Kleindienst and scarcely a reference to the nomination and confirma-
tion hearing. The concentration and almost exclusive attention was
paid to the ITT and related matters.
This Senator from time to time suggested that the ITT had not
been nominated to be Attorney General of tliis Nation. But it did
not do much good to make that suggestion, because we went on and
on and on and on, for weeks on end.
Now, it is my hope, and I express it Avith all the good faith that I
did last summer in connection with the other nomination, that we
get into our minds the understanding that the people involved in the
Watergate investigation have not been nominated to be FBI Director;
Louis Patrick Gra}^ III has. We ought to talk about Mr. Louis Patrick
Gray III, his accomplishments, his integrity, his record, and A\hat he
has done since he has been Acting Director. We ought to leave other
inquiries for other occasions, other committees, and other authorities.
It is my hope that this will happen. Only the events of the next few
days will determine whether or not we are embarked upon another
experience such as we had last summer, which did not reflect great
credit upon this committee or on the Senate of the United States, in
my considered judgment.
Senator Kennedy. Mr. Gray, what you said about the availability
of material this morning is not different from what you have said
earlier?
Mr. Gray. I hope it isn't. I have tried to be as accurate as I can,
Senator Kennedy.
Senator Kennedy. It is the same offer?
I w'as not here for joixr opening statement today, but what you are
saying this morning about the availability of material, how 30U
describe it, is the same?
Mr. Gray. I hope it is, and I believe it is, and I intend it to be.
Senator Kennedy. Recognizing part of the dilemma we are going
to be in, I think on the first day in response I believe to a question
from Senator ErAdn, you pointed out:
I would hope, of course, we would not get into the Watergate substantively,
but I can readily see that the members of this committee have got to be assured
that I went at this with the FBI standard procedure, with its accustomed vigor,
and I will do my very best to respond to any of j^our questions. ... If we are
going to take two bites of that apple, why so be it, let's get with it.
Mr. Gray. Oh, yes, I remember that, because I was concerned even
then about the problems of procedure and substance.
I was in no position on that first day to make the statement I have
made today, Senator Kennedy, because I had no way of knowing how
the questions were going to go. The inquiries have developed very
rigorously. The Senators have asked some very, very tough questions,
hard questions, probing questions.
I knew they were going to come. I also knew the only thing that was
going to stand up under this kind of questioning was the truth. That
is why I have tried to hold fast to this approach throughout this
investigation.
294
Senator Kennedy. It is really unlike any other investigation by the
Department. You can understand why there Avould be interest by the
members of the committee about the procedures which are being fol-
lowed, because this isn't like a kidnap case. Obviously, it affects the
President, and that has involved various aspects of the White House
personnel. So there is interest in at least the procedures that were fol-
lowed in that case.
Mr. Gray. Yes, sir; I think procedurally, I think so.
Senator Kennedy. So if we could go into that, I would like, this
morning, to probe into a few areas.
Could I ask the Chair, just for my own information, will we have an
opportunity to talk with the witness after the examination of the files
themselves?
Senator Eastland. Sure.
Senator Kennedy. Have we been offered memorandums of just
what will be in those files or how many there are?
\h\ Gray. No, Senator, we haven't offered that, only the summary
of July 21, which we have given to you.
No Senator has asked me for the files yet.
Senator Kennedy. But they are available as of when you came up
here?
Mr. Gray. Yes, sir; right from the start.
Senator Kennedy. And how are we supposed to know which memo-
randums are in there, or which aren't? Are we going to get any kind
of index as to which
Mr. Gray. We could give you an index, but usually they have only
case captions on them.
Senator Kennedy. I see. How big are we talking about?
Mr. Gray. You mean memorandums?
Senator Kennedy. The files.
Mr. Gray. Oh, the files — I would say — there are 186 investigative
reports, Senator Kennedy.
There are any number of memorandums submitted in response to
the questions — little notes that I made on these matters — and those
are all there.
We intend to make all that available, This has nothing to do with
Watergate, but with reference to my Cleveland speech, I found
on the memorandum, in my own handwriting, to my speech winters, I
said, "Conceptually, let's try a speech responding factually to criti-
cisms of the Princeton conference" — that was res gestae at that time.
That is what I was thinking about at that time.
You will see critical notes of mine, where I sa}^, "Go get it, move,"
and so forth.
We will make available all that we have wi'itten on this.
In our language, there are probably going to be about 2,000 serials
that constitute this file.
Senator Kennedy. Is it possible that you make available at least
some kind of a roster, a catalog or index as to what is in that, so at
least
Mr. Gray. Yes, we could do that.
One of the things is the summary of the Watergate testimony, cor-
roborative with the investigative files. Here it all is, what the witness
told us and what they said in court.
295
Senator Kennedy. Have you read the whole file?
Mr. Gray. The entke fife? No, sh. I have read approximately 82
of the 186 investigative reports. But I have read all the memoran-
dums and all of the summary books that I du^ected be prepared, these
kinds of thmgs, so I knew what we were getting and what was com-
mg out in the trial.
The only tiring I don't have full access to, Senator Kennedy, is the
minutes of the grand jurj^ in toto.
I have some bits and pieces and they are contained in our reports.
An assistant U.S. attorney would brief one of our case agents and
say, "Here I want you to follow tliis tlirough."
We do have that. But you won't see the full minutes of the Federal
grand jury.
Senator Kennedy. You have read 182 out of the 186?
Mr. Gray. Eighty- two.
Senator Kennedy. Out of the 186?
Mr. Gray. These are mvestigative reports. They consist of an ad-
ministrative page and a s^aiopsis, as we call it, and one FD-302 report
of interview, or there could be six or seven of them. These are all put
together in serial form as we call them. That is the way they are
reported.
Senator Kennedy. How long did it take 3^ou to read 82 of the 186?
Mr. Gray. Quite a bit of time. I didn't devote all of my time to
readhig them. I tried to do it on the evenings and weekends. I was
workmg during the day.
Senator Kennedy. 'V'^Tiat wovdd you estimate?
How long do you think it would take a Member of the Senate to
read through those?
Mr. Gray. If a Member of the Senate is going to read all those — of
course, it would also depend on how fast he reads— but if he sits there
with my agent and goes over it, I thmk that probabl}^ he ought to
be able to do it — I am trying to base it on some of the dates and times
that I have got — he ought to be able to do it certainly in a week's time,
I would think.
Senator Kennedy. You mean full time over a week?
Mr. Gray. He would have to spend at least that; yes, sir, an 8-hour
da}^
We would like to hit the liighlights for you.
Ask the agents, but we ^^■ill make the complete file available.
We have a lot of stuff in there we are very proud of and I personally
am very proud of.
Senator Kennedy. M^y I direct your attention to your response
to some questions about the June 19 memorandums?
Mr. Gray. Yes, sir.
Senator Kennedy. As I understand it, j^ou felt that 3^ou could not
send that over to the White House? Is that correct?
Mr. Gray. Yes, sir. Senator. That came up to me. It was a letter-
head memorandum — first it was a particular memoradum in Bureau
format, telling me what this was all about. Then enclosed was a
letterhead memorandum; then a letter to Mr. Haldeman, and the
LHM was addressed to the Attorney General.
Then the enclosure consisted of facts and ckcumstances that told
us where we were on June 19, 1972.
296
I had already made the earher decision in one of my telephone calls
with Mr. Felt, we would make no dissemination. We would pass that
along to the Attorney General, and he concurred in that.
When this came up in the regular way, it was stopped. It was not
sent.
Senator Kennedy. Why did you stop that?
Mr. Gray. I didn't know exactly what we had hold of in the
beginning. We had people with obviously Spanish surname names.
I didn't know whether it was a CIA operation. I didn't know exactly
what we had, and I thought before we go talking about it we ought
to be prett}- certain of what we are dealing with. That was my thought.
Senator Kennedy. Had the White House requested the memo-
randums?
Mr. Gray. No, sir, they had not. This is the point I am trymg to
make. Senator Kennedy. This was a standard Bureau operating
procedure.
Senator Kennedy. In the memorandums, appear the words, "to
determine whether a violation of the interception of communication
statutes or any other Federal statutes." That is a dnect quote, "or
any other Federal statutes." What does this mean?
Mr. Gray. That I think is the thing that covers — it is standard
FBI language and standard lawyer language. We don't know what we
will run into. We make sure we have put it down there so we have
covered ourselves.
I didn't write this, Senator. This was prepared in the General In-
vestigative Di^^.sion, I believe.
Senator Kennedy. On the last part of the memorandum, you have
indicated its contents will not be distributed outside the recipient's
agency. Is that a special warning on that particular memo, or is that
a standard feature?
Mr. Gray. Pretty much a standard feature. The FBI is pretty
jumpy about this, as they have been since I came in. I have been
looking into this intensively. There was a time I denied FBI reports
to various branches of the Government, where I said, I am going to
give you only one and don't you dare duplicate it. That created quite
an uproar in the executive branch of the Government. It is a part of
the continuing action I have taken to preserve these files.
Senator Kennedy. On June 19, you felt the White House should
not get the investigative material?
Mr. Gray. Right.
Senator Kennedy. And on July 21, you apparently changed your
mind?
Mr. Gray. Yes, sir. I had a direct request then and I checked with
my legal counsel. I also knew that we would have had our maximum
shock effect as far as the investigation was concerned. The dates of aU
the inter\dews will indicate that, and tliis was a pretty safe thing to do
then.
Senator Kennedy. Whom did you get the directive from, do you
remember?
Mr. Gray. I had a request from Mr. Dean as to whether we could
have a letterhead memorandum prepared in this maim.er.
Senator Kennedy. Did Mr. Dean
Mr. Gray. Yes, he called me.
Senator Kennedy. And he asked for that?
297
Mr. Gray. Yes, he did, Senator. He asked whether or not we could
have the letterhead memorandum prepared.
Senator Kennedy. And do you remember what he had requested of
you?
Mr. Gray. Yes, whether we could have the letterhead memoran-
dum ]H-epared summarizmg the status of the investigation to date.
Senator Kennedy. The ^\■hole investigation?
Mr. Gray. The status of the investigatior to date.
Senator Kennedy. It was not in any way limited to the White
House staff involvement?
Mr. Gray. No, sir.
Senator Kennedy. Was there a cover letter on the memo?
Mr. Gray. On my letterhead memorandum, the one prepared
July 21?
Senator Kennedy. Yes.
Mr. Gray. I will have to look. I know I sent it to the Attorney
General. I don't kno\\ whether we ha^'e it here or not.
(Mr. Gray subsequently submitted the following document for the
record : )
Mr. Gray. Senator, I have checked the record and determined that my
memorandum of July 21, 1972, had a cover letter attached. The cover letter was
addressed to the Attornej' Ceiicr;il.
Senator Kennedy. You sent it to whom?
Mr. Gray. The Attorney General. I remember writing LPG, from
Acting Director to the Attorney General.
Senator Kennedy. Who requested it?
Mr. Gray. Mr. Dean.
Senator Kennedy. Whom did you send it to?
Mr. Gray. The Attorney General.
Senator Kennedy. Is that standard procedure?
Mr. Gray. That is standard procediu-e, yes.
Senator Kennedy. Is it also standard procedure when you get a
request from the W^iite House on particular information you send it
to the Attorney General?
Mr. Gray. Sometimes they go direct. Sometimes they have gone
direct in the past.
What I was trying to do was lay a foundation for rimning these
things through the Cabinet officer who is the head of the Department
in which we find ourselves. It doesn't always work that wa}' and it
hasn't always worked that way in the past. It is an objective to be
sought.
Senator Kennedy. Well, what makes you decide whether you are
going to send it over to the Attorney General or not? Did Mr. Dean
request that?
Mr. Gray. No, I tried to do it in accordance with the standard
FBI procedures. That is what I tried to do, but in the past I know
sometimes that has gone through the Attorney General. Sometinies
these things have gone direct. A lot of things we send direct right
now, Senator.
Senator Kennedy. That is what I am trying to find out. H he had
requested it, and if you believe that, as you testified on other occa-
sions, that he is entitled to it, why couldn't it have gone tlirectly to
Mr. Dean rather than being routed through the Attorney General?
298
Tvli\ Gray, I made the decision that it go through the Cabinet
officer concerned.
Senator Kennedy. And was it addressed to Mr. Dean?
Mr. Gray. My recollection is that it was addressed to the Attorney
General. It was a memorandum from the Acting Director to the
Attorney General.
We can check that. I will check it, Senator, and make certain my
testimony is accurate, but that is m}' recollection. I asked for a legal
opinion on this, you know, from my own office of legal counsel.
(Mr. Gray subsequently submitted the following document for the
record :)
Senator, upon checking the record further, T find the memorandum and cover
letter dated July 21, 1972, were addressed to the Attorney General with copies
of both the memorandum and cover letter to the Deputy "Attorney General and
the Assistant Attorney General.
Senator Kennedy. Would that be part of the file?
]\Ir. Gray. We have alread\' made it part of the record. I am cer-
tain of that. If we haven't, I would do it.
(Mr. Gra}^ subsequently submitted the following document for
the record :)
I have checked my records and find that the opinion of m}' Legal Counsel has
not previously been made a part of the record. I am submitting herewith for the
record a memorandum dated July 20, 1972, captioned "Dissemination of In-
formation, The White House, Criminal Cases," setting forth that opinion,
July 20, 1972.
IMemorandum to: Mr. Felt.
From: D. J. Dalbey.
Subject: Dissemination of information, the White House, criminal cases.
You advised me that the Acting Director desires an opinion on the legal basis
for dissemination by the FBI to the White House of information concerning a
criminal case being investigated. INIore specifically, if I understand the situation,
he means a case being investigated as a criminal case for ])rosecution involving a
violation of Title 18, United States Code, and which does, or may, implicate
Federal employees as subjects. Our repl.v is limited to such a situation.
For reasons shown below, we conclude that the FBI has no authority, or duty,
to initiate dissemination of information to the White House concerning the crim-
inal investigation in progress. Note that we use the word "initiate." We did not
consider the matter of disseminating such information to the White House on
specific White House request. In this latter situation we assume that since the
President is the top boss of the Executive Branch he can obtain from that branch
any information that he wishes. This is a different matter, legally and otherwise,
from the one in which we would on our owti decision initiate dissemination of the
information.
We find no authority or duty for the FBI to initiate the referenced dissemina-
tion. So far as we can find, such dissemination is not required by the Constitution,
or by any statute or Executive Order, yioreovev, we are unaware of any existing
instructions of any kind bj^ which the White House has notified the FBI that it
should be kept advised generally in matters of this kind.
There is authority, legal and otherwise, for taking a position that we are
authorized and required only to report such matters to the Attorney General or
to such other persons as he designates, such as the United States Attorney. By
order of the Department, all information in the possession of the Department of
Justice, including the FBI, is in the custody of the Attorney General and, tech-
nically, may not be released from the Department without his consent. This
prohibition technically covers the White House and does no damage to White
House interests because the Attorney General serves the White House and can
either release to that office such information as he sees fit or as he is requested to
provide. For purposes of the case under discussion, a strict interpretation of the
departmental order would prohibit our dissemination of the information to the
White House without the Attorney General's permission. Equallj' pertinent is
299
Title 28, United States Code, Section 535, entitled "Investigation of Crimes In-
volving Government Officers and Employees; Limitations," which provides, in
pertinent part, that "Any information, allegation, or complaint received in a de-
partment or agency of the executive branch of the Government relating to viola-
tions of Title 18 involving government officers and emploA^ees shall be expeditiously
reported to the Attorney General by the head of the department or agenc3\ ..."
This statute seems to clearly state that when the FBI, as in the type of case de-
scribed earlier, investigates a matter indicating that a Government officer or
employee may be involved in any violation of Title 18, the FBI must expeditiously
report the matter to the Attorney General. Our legal responsibility and duty is
to keep the Attorney General fuli.v informed and there it ends. Whether, and to
what extent, the White House should be informed is a matter for the Attorney
General.
The requirements of the administrative chain of command in Government
leads to the same results. The requirements are that we follow the chain and not
bypass any link in it. This means that we advise the White House, if at aU, through
the Attorney General and not around him. The Attorney General can, of course,
jjermit us to advise the White House directh', but we do not understand that
such oermission has been either expressly or impliedly granted in this case.
This discussion raises the question of legality of dissemination to the White
House in the past. It is my understanding uncler Mr. Hoover we disseminated
information on criminal cases to the White House when, as, and if Mr. Hoover
directed that we do so, and this was done on Mr. Hoover's instructions without
reference to the matter of whether we did or did not have the authority. The
practice apparently had the sanction, grudgingly or otherwise, of the Attorney
General and apparently was at least condoned bV the White House. This is not
to say either that it was right or it was wrong. Our only position is that from a
strict legal standpoint, there was no specific authority for it. The authoritj' and
the obligation of the FBI are to keep the Attorney General fully informed and
to leave the rest to him.'
Recommendation. — For information.
• Do so in this particular case and in all future cases.
Senator Kennedy. To your information it went to Mr. Kleindienst?
Did voii ever hear again as to whether it was actuall}^ received by
Mr. bean?
Mr. Gray. No; I did not. I beheve it was. I have got to say that.
That was the purpose of it, and I beheve it occurred. That I wiU have
to check, and I will check.
Senator Kennedy. You will check whether
Mr. Gr.\y. Whether it went to ]\Ir. Dean.
(Mr. Gray subsequently submitted the following document for the
record :)
I have checked and the memorandum was actually received by Mr. Dean.
Senator Kennedy. I am just ^\ondering, Mr. Dean from the White
House makes a request of the Dei)artment, and then I understand
you sent the memorandum to Mr. Kleindienst, and you have no way
of knowing whether Mr. Dean ever received it?
Mr. Gray. It is not standard procedure in every ease. That is what
I am saying. There are various procedures in various cases. That was
standard in this case.
I checked with the opinion from miy own office of legal counsel,
because I wanted to be sure I was doing it as correctlv as it could
be done.
Senator Kennedy. Did you talk to Mr. Kleindienst about the
memorandum at all?
Mr. Gray. That I don't know. I may have talked with Mr. Erick-
son. I have a recollection of talking with Mr. Erickson about this.
Senator Kennedy. Do you remember that conversation?
300
Mr. Gray. No; I don't remember that conversation. It is one of
those things that you have as a fleeting memory.
Senator Kennedy. But there is no returned receipt or anything of
that nature?
Mr. Gray. No, it isn't that type of thing, Senator Kennedy.
Senator Kennedy. Is there any way of knowing what happened to
that memorandum after it was received by Mr. Kleindienst; you are
not sure, at least as of this hearing, that it actually got into the hands
of Mr. Dean?
Mr. Gray. No, I can't testify under oath, but I must assume that
it did.
Senator Kennedy. Do you have any information that it might have
gone to any other place besides Mr. Dean?
Mr. Gray. No, sir.
Senator Kennedy. That it may have gone to the Committee to
Re-elect
Mr. Gray. No, sir.
Senator Kennedy. Do you have information as to that?
Mr. Gray. No, sir; I have no reason to beheve that. That has never
been turned up in anj^thing that we have encountered.
Senator Kennedy. Now, the final paragraph of the July 21 memo-
randum, imlike the June 19 memorandum, doesn't have a final para-
graph about it being the property of the FBI?
Mr. Gray. No, the final paragraph there is the dissemination — I
think the designation or description of the investigation as I recall
it — yes, the direction of the investigation.
Mr. Ivinley reminds me that this went to the Attorney General. I
don't know other than that it was prepared at some level ^\ithin the
Bureau. I didn't say: Do it this way and put that caveat on that.
But this particular one, of course, was right \\'ithin the Department
to the Attorney General. The other one with the letter to Mr. Halde-
man had a letter going outside the Department and it was a standard
caveat. It is printed on a lot of our forms.
Senator Kennedy. And it wasn't on — even the last paragraph
didn't include it?
Mr. Gray. In the July 21 memorandum?
Senator Kennedy. Yes.
Mr. Gray. No, sir. That last paragraph spoke of the direction of
the investigation, but once again, that is an LHM going direct to the
Attorney General.
Senator Kennedy. Do you have any information about who else
might have received copies of the July 21 memorandum?
Mr. Gray. No, sir; I do not.
I have no reason to believe that — nothing has come to us indicating
that this has occurred.
I am reminded, Senator, that copies did go to the Deputy Attorney
General and the Assistant Attorney General in charge of the Criminal
Division.
Senator Kennedy. They got copies?
Mr. Gray. Yes, sir, they normally are information addressees.
There is the probability they did.
Senator Kennedy. Is that a cover memorandum? We haven't got
that? That wasn't part of the memorandum?
301
Mr. Gray. No, the memorandums themselves ^yellt out.
Senator Kennedy. Who else received copies of it?
Mr. Gray. I would believe that the Deputy Attorney General and
Assistant Attorney General in charge of the Criminal Division, and
that would once agam be standard operating procedures for us to
do that.
Senator Kennedy. They would get routinely copies of memorandums
that were prepared for the White House?
Mr. Gray. No, sir. That is not my testimony, Senator Kennedy.
In a major criminal case, like this, when we prepare an LHM
summarizing the investigation at that point in time they would get it.
Senator Kennedy. On page 3 of the memo, you indicated that
Hunt and Liddy were traveling around the United States, contacting
former CIA employees for the purpose of setting up a security or-
ganization of the Republican Party, dealing with political espionage.
Was that allegation fully investigated?
Mr. Gray. Yes, sir. I hate to tell you the number of telephone
calls we ran down, finding people being contacted along those lines,
but we did.
Senator Kennedy. Could you tell us what you found?
Mr. Gray. I found out just that, that they were offering jobs to
come to work for the Committee to Re-Elect the President in a
security capacity.
Senator Kennedy. Were any of these in connection ^^'ith potential
violations of any Federal law?
Mr. Gray. No, sir; we didn't get that kind of information from
them. They told us that the job offer was made and the job offer
was in the nature of security work for the Committee to Re-Elect the
President.
Senator Kennedy. On several occasions the White House, and I
think even the President, has alluded to the investigation which was
conducted for the President by Mr. Dean.
Do you have any idea what that investigation consisted of?
Mr. Gray. No, sir; I do not.
Senator Kennedy. Well, did you ever talk to him about that, that
phase of it?
Mr. Gray. Not to the extent to which he was conducting it or
anything like that.
I knew very definitely he was conducting an investigation and had
been charged with the responsibility of conducting the investigation.
Senator Kennedy. He was charged with the responsibility?
Mr. Gray. For the President, to determine whether there was any
involvement of White House staff members m this matter.
Senator Kennedy. Did you ever talk to him about the result of his
investigation?
Mr. Gray. No, sir; I did not.
Senator Kennedy. Why not?
Mr. Gray. Several reasons.
We were proceeding along our own route and doing our own in-
vestigation in our own way and running down far more leads than he
could possibly run down.
He doesn't have the kind of resources we have, and there was no
reason to believe we should talk to him on the progress of his investi-
gation,
91-331—73 20
302
Senator Kennedy. You weren't interested in any of the things he
might be able to uncover?
Mr. Gray. No, sir; I want to be absohitely honest with you. We
were going to do it ourselves and in our own way.
Senator Kennedy. You were just talking about all the phone calls
you had to track dowTi to look into the allegations of espionage, political
espionage, and all the work being done, and yet you didn't think you
had to talk to Mr. Dean who was conducting an investigation, to get
his results and his findings?
Mr. Gray. Senator Kennedy, I said we ran down telephone leads
a-egarding men being offered positions for security work. We didn't
talk about political espionage or sabotage or anything like that, and
they didn't raise it, none of these people raised that with us.
No, I felt we had to do our own investigation and this is what I am
going to be accountable for, the FBI, not Mr. Dean's investigation.
Senator Kennedy. According to the FBI summary, which is pro-
vided for the record, Mr. Dean was present during the FBI interviews
at the Wliite House?
Mr. Gray. That is correct, sir.
Senator Kennedy. Is this normal procedure for the FBI?
Mr. Gray. I would say that the honest answer to that question has
got to be "No", this is not normal procedure in the normal average
Senator Kennedy. Well, is it ever permitted?
Mr. Gray. Yes, it is indeed.
Senator Kennedy. Where, in what circumstances do you permit
other people to sit in during the course of an FBI investigation?
Mr. Gray. We always have the option. Senator, as investigators, to
interview an individual with his attorney present or not.
Senator Kennedy. And what do they usually decide?
Mr. Gray. Our preference is to interview individuals without the
attorney present, but when the individual states that he wants his
attorney to be present, or when an attorney is present, we have to make
a decision as to whether to go ahead and interview with or without the
attorney being present. This does happen, and with more frequency in
today's world. When it occurred, I was advised that Mr. Dean was
going to be sitting there in his official capacity as counsel to the Presi-
dent and as part of his responsibility to conduct an inquiry for the
President.
I also asked if he interfered with questioning of our agents, and I
was advised that at no time did he interfere with the questions.
Senator Kennedy. [Reporter failed to record question.]
Mr. Gray. The case agents, all the way up the line. Because I
asked this question. I started down the chain, from me and my No. 2
down, and the answer came back up.
Senator Kennedy. Well, your case agents were told that Mr.
Dean could sit in — who told them?
Mr. Gray. The Special Agent in Charge of the Washington field
office. I believe that this — initially, I myself was contacting Mr.
Dean as to how procedurall}^ these White House interviews were
going to be conducted. I think I made a couple of calls to him on that,
and then I think the matter was passed direct to the Sj^ecial Agent in
Charge of the Washington field office, who then dealt direct with
Mr. bean.
303
The problem was one of the scheduHng.
Senator Kennedy. About Mr. Dean to attend these interviews?
Mr. Gray. No, to get the witnesses, to question them — you know,
they are moving around — and to really schedule these interviews.
That was one of the problems we had.
Senator Kennedy. But just as far as Mr. Dean sitting in on all of
these interviews, that was handled at your regional level or local
level?
Mr. Gray. No; that was handled at my level.
If I had objected to that, I could have said as far as the FBI is
concerned, we will not conduct any investigations of Wliite House
personnel.
I obviousl}^ couldn't make that decision. So I had to sa}^: Jolly well,
we wnll conduct the investigations with Mr. Dean sitting in. It is that
kind of decision in every case.
Senator Kennedy. Well, did you want Mr. Dean to sit in during
these investigations?
Mr. Gray. M3' preference, if I had had m^^ preference, would have
been "No."
Senator Kennedy. Did you indicate that preference to Mr. Dean?
Mr. Gray. I can't remember whether I did and it would be unfair
to him to sa.y that I did when I cannot testify definitively and posi-
tively under oath.
Senator Kennedy. Why wouldn't you indicate that?
Mr. Gray. The probability is that I did, but I cannot recall it with
that sufficient degree of clarity to enable me to say that to you.
It was just an inner feeling, because I know what the preference of
the FBI is, and I knew — it is alwaj^s a situation which is reported to
us, at FBI headquarters level, and we have to make a judgment either
at the FBI supervisory level, the Assistant Director level, the Acting
Associate Director level, or the Acting Dhector level as to whether
or not the FBI is going to proceed with an interview under these
conditions. If we want an interview bad enough, we proceed with the
attorney present.
This is happening more frequenth^ these davs, but I don't want
you to understand m}' testimon}' to be that it is normal.
Our preference is otherwise.
Senator Kennedy. Was he there as an attorne}'- for these people
you were interviewing, or as counsel for the President, or as an in-
vestigator, or what?
Air. Gray. I asked that question in the begimiing, and I was in-
formed that he was there
Senator Kennedy. You asked it, of whom?
Mr. Gray. My people, my people in the chain of command.
I fu'ed the question down. The answer came back: No, he is here
in his official capacity as counsel for the President of the United
States and in the conduct of his investigation.
Senator Kennedy. So he wasn't an attorney or lawyer?
Mr. Gray. I am informed that he was not sitting there as counsel
for the interviewees.
Senator Eastland. Let us recess now.
(Wliereupon, at 12:15 p.m., the hearing was recessed to reconvene
at the call of the Chair.)
NOMINATION OF LOUIS PATRICK GRAY III
WEDNESDAY, MARCH 7, 1973
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The committee met, pursuant to recess, at 10:45 a.m. in room 2228,
Dirksen Senate Office Building, Senator James O. Eastland (chairman)
presiding.
Present: Senators Eastland, Ervin, Byrd of West Virginia, Tunney,
Hruska, and Gurney.
Also present: John H. Holloman, chief counsel, and Francis C.
Rosenberger, Thomas D, Hart, and Hite McLean, professional staff
members.
Senator Eastland. The committee vn\l come to order.
Senator Ervin. Mr, Gray, there was a publication in the press of
a statement that the California lawyer, Mr. Young, had given an
affidavit to representatives of the Washington Post, stating in sub-
stance that Mr. Segretti communicated with Mr. Young and told him
that he had been subpenaed to testify in the Watergate criminal
prosecution, that he had been interviewed by the FBI, and that 2
•days before the convening of the Republican National Convention
lie was in ]\Iiami, and that a Wliite House aide showed him statements
which he said had been made to the FBI, and was told about giving
some kind of suggestions from the White House aide as to how he
should testify in case he were called as a Avdtness in the criminal
prosecution.
What steps, if any, did the FBI take to ascertain the correctness
or accuracy or inaccuracy of any statements made to him by Mr.
Segretti?
TESTIMONY OF LOUIS PATRICK GRAY III— Resumed
Mr. Gray. As far as Mr. Segretti is concerned. Senator Ervin, we
interviewed him the 26th, the 28th, and the 30th of June, and later
he was subsequently contacted on the 18th of August 1972, when he
was served with a summons ordering him to appear before the Federal
Grand Jury in Washington on the 22d of August 1972. He was not
interviewed at this time.
Senator Ervin. Was he ever interviewed with a view to finding out
-whether a Wliite House aide did present to him statements he had
made to the FBI, and the identity of that White House aide ?
Mr. Gray. No, he was not. The only thing that was ever done was
the call that I made to Mr. Dean when I saw this article in the news-
paper. Because, the only individual who had these from me was Mr.
(305)
306
Dean, and in point of fact, you know, Mr. Segretti would have been
entitled to look at these had he asked to look at them. This is the law
of the case.
Senator Ervin. Yes, but he would have the right to look at them
while in the custody of an employee of the FBI.
Mr. Gray. That is correct.
No other investigation was made other than what I have just
testified, Senator.
Senator Ervin. Looking back at the incident, with hindsight, which
gives us superior advantages over foresight, don't you think it would
have been the part of wisdom to have interviewed Mr. Segretti
specifically about this, and also Mr. Young specifically about it, with
a view, irrespective of whether Mr. vSegretti was violating any law,
to determine whether or not there is some kind of leak of FBI infor-
mation when a person is not entitled to it?
]Mr. Gray. No, I didn't, and I will tell you why. All through this
period, there were items constantly appearing in the newspaper, and
we were interviewing and reinterviewing, and we would never have
been finished.
There had to be a point of finality. I made the check, the call. I
put the question and, I beheve, the demand. I let it rest right there.
I was satisfied.
Senator Ervin. You believed Mr. Dean when he said he did not
divulge or permit the divulging of FBI reports, but it certainly seems
to me that there is an obligation resting upon the FBI to investigate
emy alleged breach of FBI information or the delivering or the custody
of FBI reports by people who are not authorized to receive them.
Mr. Gray. Some of them we do and some we don't. It is a matter
of judgment. I previously testified to this point, that I don't seek to
run down every single one of those allegations that appear constantly
in the newspapers. We just cannot do it, and I don't do it.
Senator Ervin. Now, here you have a case of a criminal action
that is pending — I beheve the indictment was found a little later;
that is, in September — and here is a statement broadcast to the
American people by the Washington Post, indicating that a White
House aide had gone to Miami and given suggestions to a prospective
witness who was to testify in that case as to how he was to testify.
It seems to me that is a very serious matter.
Mr. Gray. I looked at it that ^vsiy. As I looked at the article, it
said three affidavits were taken from this man, and Mr. Segretti was
sho-wii an interview that occurred 2 days before. That is obviously
false. I know when he Avas interviewed. I don't place too much cre-
dence in that, to start with.
Senator Ervin. Wlien did the Kepublican National Convention
meet? I don't remember the exact date.
Mr. Gray. It was in August. It had to be in August sometime, I
know. I am not sure. I don't know whether it was July or August,
but I think it was August.
Senator Eastland. August 20, wasn't it?
Mr. Gray. I think it was August. I am not sure. I will have to
check. But the statement right there was 2 days before, with regard
to an interview that had been conducted of him, and I knew this was
false on its face, patently and horrendously false.
307
(Mr. Gray subsequently submitted the following document for the
record :)
Mr. Gray. Upon checking, I have been informed that the Republican National
Convention was held from August 21-23, 1972.
Senator Ervin. It could have been false as to the time of the taking
by the FBI of a statement which Mr. Young said Segretti told him
had been exhibited to Mr. Segretti b}" a White House aide, but it might
have been true in other respects, might it not?
Mr. Gray. This is a possibility.
Senator Ervin. I believe, M-ith all due respect — and of course it was
your responsibility and somebody who doesn't have the responsibility
can alwa^'s tell him Avho does how" to discharge that resjionsibility
better than the man who has it — but it seems to me that that was a
very serious cjuestion, and since you had the identit}^ of two of the men
mentioned, namely, Mr. Young and Mr. Segretti, I don't believe that
the investigation of that matter ought to stop with just asking Mr.
Dean a question.
Mr. Gray. Well, Senator, I made the judgment that it should be-
cause of the fact we were constantly besieged throughout this investi-
gation by all kinds of allegations. If w^e were going to take our time to
run down every one of those, we never woidd have been able to do our
primary job. I just absolutely refused to respond to some of those,
particularly when we looked into them. There will be some notes on
some of the teletypes where I said, "No, we are simpl\^ not going to
run this do^^'n; we have investigated it; we are not going to look into
it, and I am not going to be badgered." I made my written comments
on some of these to that effect.
Senator Ervin. We had a justice of the peace down in North Caro-
lina, who had been ne^ly appointed to office, and in his first case a
defendant was brought before him on a criminal charge.
And the justice of the peace said, "Are you guilty or not guilty?"
The defendant said, "I am not quilty."
The justice of the peace said, "Go on about your business. If you
are not guilty, you have no business being here."
And the constable said to the justice of the peace, "You ought to
hear the witnesses for the prosecution before you tell the man to go."
And the justice of the peace said, "He says he is not fiuilty, and
therefore I am not going to investigate this matter any further."
It seems to me that rather than stopping mth Mr. Dean, when you
had these other leads, that the FBI ought to have explored these other
leads. That is just a matter of my judgment.
Mr. Gray. With all due respect, my judgment differed at the time
and my judgment still dift'ers.
Senator Ervin. That is all.
Senator Eastland. You testified yesterday, if I am correct, that
when the people at the Wliite House were questioned by the FBI,
that Mr. Dean sat in?
Mr. Gray. Yes, sir, that is correct.
Senator Eastland. As their attorney?
Mr. Gray. No, sir, I don't believe, Mr. Chairman, I said that.
I believe I said, and I would incorporate by reference my prior
testimony into this answer, but I think my testimony was to the
308
effect that he was there in his official capacity as counsel to the
President in the conduct of his inquiry for the President.
Senator Eastland. Well, now did you question the people at the
Democratic headquarters?
Mr. Gray. Yes, sir, we did. We had occasion to do so in September,
when there was an allegation and furor raised over another trans-
mitting device being placed on the telephone of an official of the
Democratic National Headquarters. We did go into that matter
rather extensively. We knew from our search at the time that we
swept the Democratic National Committee Headquarters that we
left no stone unturned to examine physically and electronically and
make certain that no devices were there, sir.
When this device turned up, you can believe, Mr. Chairman, that
there was consternation in the Federal Bureau of Investigation, there
was acute irritation.
But we did interview, I believe, almost 60 persons at the Demo-
cratic National Committee Headquarters.
Senator Eastland. Were they represented by counsel?
Mr. Gray. Yes, sir; they were.
Their counsel sat in on every one of those interviews.
In fact, this was insisted on, just as it was in the prior case.
We have never been able to run down a red box that we tried to
get hold of, and wanted to get hold of, and we still have not been
able to get hold of that red box.
Senator Eastland. Well, the point is that they were represented
by counsel?
Mr. Gray. That is correct, Mr. Chairman.
Senator Ervin. I have to go now to perform an unprecedented
mission: to ask a committee not to give us in North Carolina another
Federal judge. [Laughter.] Mr. Gray, I would like to ask one question
before I leave.
As I understand it, the FBI has, when it is conducting an investi-
gation, no way to compel anybody to give information; is that correct?
j\Ir. Gray. That is correct, sir.
I have said on many occasions in newspapers we don't have the
bastinado.
We have to talk to these folks and use persuasion. And, as one
federal judge commented, even the Mafia — I should not use that
word — even members of organized crime "will talk to us because of the
inherent competence of the investigators.
One Federal judge wrote that into his opinion and stated that these
members of organized crime would talk to the people of the FBI.
So we do have to rely on the superb training they receive as investi-
gators.
Senator Ervin. And when you started to interview people in the
White House — as I understand it — Mr. Dean insisted on being
present?
Mr, Gray. That is correct.
Senator Ervin. And when a person insists on his counsel being
present, or when he makes an insistence like that, you have to comply
to get any interviews at all; don't you?
Mr. Gray, Yes, Senat:>r. I said yesterday, we have two courses
open to us, either inter^dew the witness c r not interview the witness.
309
Senator Em-in, in response to your question, I would like to add
something as I have just had a note passed to me. I am advised that
on March 5, 1973, our special agents did go over the Segretti matter
again with Air. Chapin, asking him whether or not he saw Segretti in
Miami, and whether or not he showed Segretti any FBI documents.
The answer to both questions was in the negative. So we did do some-
thing more, but I did not direct it.
Senator Ervin. But you never did contact Mr. Segretti on this
matter?
Mr. Gray. No, sir. I want the record clearly to sho>v that I did not
direct it.
This is the FBI policy, digging without any pushing by the Director^
or reining back from the Director, Senator.
Senator Ervin. Thank you.
Senator Eastland. Senator Byrd.
Senator Byrd. Mr. Gray, on page 20, j^ou stated — wdth reference
to the invitation to go to Cleveland, Ohio, to make a speech — as
follows :
The facts in that case are that a memorandum was sent to me and I was one of
perhaps 20 to 30 people, I am told, inviting mj^ attention to this particular speaking
invitation engagement at the Citv Club in Cleveland, and stating in the last
paragraph of that memorandum, I believe that Ohio was important to us and a
nice thing to do.
On page 89, 3^ou said, and I quote: "That "White House memo went
to 20 some odd other people."
How do you know that it was sent to 20 or 30 other people if the
memo was addressed to you by name?
Mr. Gray. In preparation for these confirmation hearings, I was so
advised bj^ a member of my staff whose name I cannot remember^
and whose name I will ascertain — David Kinley, my executive assist-
ant, told me.
Senator Byrd. You say in preparation for these hearings. Wliy was
the matter not inquired into at the time?
Mr. Gray. Well, at that time it was a memorandum to me. I didn't
really give it that much attention, as I previously testified.
I didn't go to Ohio because of that memorandum, Senator Byrd, as
I have testified under oath. That memorandum did not propel me into
Ohio.
Senator Byrd. You also testified under oath j^ou had had previous
invitations?
Mr. Gray. That was in error. I also said at page 20: "and ask if I
may have the permission to submit for the record the actual documen-
tary information regarding this particular incident."
Senator Byrd, I respectfully submit that if I were trying to hide
anything, I would not ask the permission of the committee to put the
documentary evidence in the record.
I misspoke myself. Some people may say I lied. That is for them to
judge. I made an error, but I did offer all the documentary evidence
for the record, and there was no intent to withhold.
Senator Byrd. Do you have any idea as to who the other 20 to 30
people were?
Mr. Gray. No, sir; I do not.
Senator Byrd. Could you supply those names for the record?
310
Mr. Gray. I will ascertain those names and supply them for the
record, Senator B37i'd.
(Mr. Gray subsequently submitted the following document for the
record :)
Mr. Gray, INIr. O'Donnell has advised us that he contacted the following indi-
viduals requesting that they speak before the Cleveland City Club: Senator Barry
Goldwater, Herbert Stein, John Voipe, Peter Flanigan, Peter Peterson, Joseph
Blatchford, George Ronniey, Senator Marlow Cook, Shirley Temple Black, John
Eisenhower, Donald Ptumsfeld, James Hodgson, George Shultz, George Bush,
John Connally, William Ruckelshaus, John Scali, Earl Butz, L. Patrick Graj'^, III.
Senator Byrd. You stated on page 89, in response to Mr. Bayh's
question, that j'ou didn't go up there because of the White House
memo. Is that accurate.''
Mr, Gray. Yes, sir; that is accurate.
In fact, I have introduced a document for the record which has some
of my own handwriting on it, directions to some of the men in the
FBI who prepare the first drafts of my speeches, to "conceptually
deal with this" in a speech. I don't remember the exact words — and
I will rely on the documentary evidence. It is a matter of record
within this hearing.
But to deal with the problems raised by the Princeton Conference,
to try to meet some of those issues in a positive manner.
Let me read it to you. Senator Byrd:
Conceptually let's try a speech responding factually to criticism of Princeton
Conference without identifying, let's be positive.
That is what I said.
Senator Byrd. You indicated that you received a request directly
from the Cleveland City Club?
Mr. Gray. Yes, sir, and that statement is in error, Senator Byrd,
and I apologize.
Senator Byrd. You indicated that in response to a question I
believe from Mr. Eastland, Senator Bayh, and myself.
Do you care to explain why you seemed so sure that you had received
that request from the Cleveland Citj^ Club before 3'ou received the
memo from Mr. O'Donnell?
Mr. Gray. I don't believe I was that sure because, on page 33, I
asked to place into the record the documentary information. I have no
other way of accounting for it.
My memory was not that good. I have tried consistently throughout
these hearings to give the committee exact information, to be forth-
right, and to place material in the record and not rely so completely on
my memory unless I am absolutely certain. Even then, j^ou know,
sometimes in the realm of human affairs, it is difficult to be absolutely
certain, and I do not claim that I am perfect at all. Senator Byrd.
I wouldn't want the record to be misconstrued at that point. We did
eventually receive an invitation from them, and that shows in the
documentary evidence.
Senator Byrd. That was after you had indicated that you would go?
Mr. Gray. That is correct, Senator Bj-rd. I have said that was an
error, and I have tendered my apologies.
Senator Byrd. But you had not previously received a formal
invitation?
Mr. Gray. No, sir.
311
Senator Byrd. You also stated that the White House memo, as I
have mdicated, included 20-some-odd other people. You didn't attach
any weight to that.
On page 23, in response to the chairman's question, you said:
I went to speak because I believe that I should go to speak to all Americans,
but if you ask nie under oath if I went because I got the memorandum from the
White House, I would sa.y No, sir, I did not go. I went for a particular reason.
I have a hard time understanding in my own mind that if the original
invitation came to you in the O'Donnell memo from the White House,
how you can say j'^ou didn't go up there because of the White House
memo?
Mr. Gray. Because I know what went on in my mind. Senator.
I made the judgment, and I made a notation on that memo, "OK, I
will do it, let's push it far out," or something to that effect.
I said, "I will do it but push it out ahead, check with Mrs. Neenan"
— who is my personal secretarj^ — "for scheduling."
Senator Byrd. You also stated, in response to the chairman
Mr. Gray. Pardon me, Senator Byrd, if I may. That is on the
memorandum dated June 16, 1972.
Senator Byrd (continuing). You also stated, in response to the
chairman, on page 20:
The Club had been sending invitations to Mr. Hoover since 1968.
And in your additional responses to my request, you said:
Our file did show that the Cleveland City Club had previously requested the
appearance of Director Hoover in 1968, and again in 1970.
You stated that Mr. Hoover had not been able to accept either
commitments under the recommendations of the FBI staff to do so.
Do you have any idea why ]Mr. Hoover might not have accepted their
invitation?
Mr. Gray. The onh^ possible idea would be one of pure conjecture,
and that would be that he didn't like to make speeches. That is the
only idea I have, and it is pure conjecture, »Senator. I don't really know.
Senator Byrd. Could it have been possible that he didn't like to
make speeches during a campaign year and at least one of the invita-
tions to him was in 1968?
Mr. Gray. Senator, it woidd be pure conjecture. I don't know what
went through his mind. I tlon't know whether Mr. Hoover was of that
mind or not. I just cannot say.
Senator Byrd. In the letter you supplied to the committee, of
July 7, 1972, addressed to 3'ou from Allen L. Davis, the executive
director of the Cleveland City Club, Mr. Davis stated:
As you may know, this forum has brought many well-known people to Cleve-
land and raised many important issues in the past. Many of our speakers have
used this opportunit.y for a major policy statement.
Is it possible, Mr. Gray, that because of such nature of the club,
Mr. Hoover would have felt it an inappropriate forum for the Director
of the FBI?
Mr. Gray. I cannot testify as to what Mr. Hoover thought, Senator
Byrd. I didn't consider it a forinn for a major polic}^ statement because
we don't make Sinj major policy statements in the FBI, and that was
not my intent at all in going.
312
Senator Byrd. In reading the documents you have suppUed to be
inserted, on page 103 of the hearings, I ask you this:
In the memo to you from Mr. O'Donnell, could 3-0U tell me who
underlined the sentence:
With Ohio being crucially vital to our hopes in Nov^ember, we would hope you
will assign this some priority in planning your schedule.
Mr. Gray. No, sir; I cannot. We tried to determine that.
Once again, it is pure conjecture. This occurred within the Crime
Records Division, but it is pure conjecture. We didn't even notice
that at all until this later came up and we looked for those documents.
I did not do it.
Senator Byrd. On the same document, there are vertical lines
marking that sentence, and also the parts that read as follows:
The city Club has asked our assistance in attempting to secure your participa-
tion as a key speaker sometime during the period following July 1st, 1972. They
meet every Fridaj^ at noon, and have a 300 maximum attendance. However, if
you were inclined, they could go public and provide almost a crowd of any size-
you may desire.
Could you state who made those vertical marks on the documents?
Mr. Gray. No, sir; I can not.
It is a normal procedure. People who read these materials first
normally put lines either in the margin or underUne something for
my attention. This occurs as a matter of normal operating practice,
and you mil see that done.
Senator Byrd. In the memorandum to Mr. Bishop from Air. Jones
dated June 16, 1972, I find underlined the words, "* * * live on local
radio stations," and, "* * * the Club is dominated b}^ liberals and these
are the type of people we should be contacting in an effort to convert
them."
Do you have an}^ idea who did the underlining of this document?
Mr. Gray. No, sir; I do not. I can testif}^ also on the prior docu-
ment, the O'Donnell memo of June 19, 1972. Wlien that document
came to me, the original did not have that on there, the underlining,
the horizontal underlining as distinguished from the vertical lining.
Somebody did that after the fact. We have been able to ascertain,
that.
Senator Byrd. After what fact?
Mr. Gray. After I looked at it.
Senator Byrd. On the same document, I find the vertical lines
marking the sentences, "The Club ofTers a prestigious meeting place
for the open discussion of important social, political and economic
problems," and, "The Club engages in discussions of controversial
subjects, and it is entirely possible that some embarrassing questions
could be put to Mr. Gray which might prove embarrassing to him
and to the Bureau."
Do you have any idea who made these markings?
Mr. Gray. No, I don't. This is standard language I ran into in the
early days at the Bureau, that I would embarrass the Bureau. I
would tell the Bureau that, "Your magnificent record of accomplish-
ment speaks for itself. No one can embarrass the FBI."
That was immaterial and irrelevant, so far as I was concerned,
Senator Byrd. I don't pay any attention to that kind of language.
313
Senator Byrd. On page 45, you indicate as follows:
I think it was the middle of July, about the 19th, I was asked by the White
House, by John Dean, to provide them with a letterhead memorandum because
he wanted to have what we had to date because the President specifically charged
him to looking into any involvement on the part of White House staff members.
I asked my legal counsel to prepare me a memorandum regarding whether or
.not we bad a duty to send anj^ material to the White House.
Have you supplied the committee with this memorandum?
Air. Gray. Yes, sir, we did.
■Senator Byrd. I am talking about the memorandum that was
prepared by your legal counsel.
Mr. Gray. I am sure we did. If we didn't, I intended for us to.
If we have not, that has been an oversight in the mechanical process.
But I intended foi that memorandum to be supplied.
Senator Byrd. You indicated the answer came back, ''On your
own initiative, no, in response to a directive from an indi\adual acting
for the President of the United States that is another matter, and we
•do"?
Mr. Gray. That is correct.
Senator Byrd. Do you have the memorandum with you prepared
'bj your legal counsel?
Mr. Gray. Yes, sir, we do, and it was supplied for the record. If
W'C have not — but it was my original intent to supply it — I repeat the
offer.
Senator Byrd. If you have it there, would you read it, please?
Mr. Gray. We don't have it here, Senator. We will have to pro^dde
it for you.
(Mr. Gray subsequently submitted the following document for the
record :)
Mr. Gray. I have checked my records and found that the memorandum pre-
pared by my Legal Counsel was previously made a part of the record of the
Morning Session, ^Nlarch 6, 1973, at page 389, line 3. The memorandum was
•dated July 20, 1972, and captioned "Dissemination of Information, The White
House, Criminal Cases."
vSenator Byrd. Wlio w^as the legal counsel who prepared the memo-
Tandum?
Mr. Gray'. Dwight Dalbej', Assistant Director in charge of Legal
Counsel.
Senator Byrd. All right, if you will supply that, please, for the
record?
You then went on to say that you prepared or had prepared or
■ caused to be prepared a letterhead memorandum dated July 21, and
that was submitted to the Attorney General. You said j^ou had every
reason to believe that that went over to Mr. Dean at the White House.
What was the reason for
Mr. Gray. I am sorry, Senator Byrd; what page are you reading
from, sir?
Senator Byrd. Page 45.
Mr. Gray. I missed your question. I must apologize, Senator; I
missed yoiw question.
Senator Byrd. Yes. Well, you indicated that you caused to be pre-
pared a letterhead memorandum dated July 21. You indicated it was
submitted to the Attorney General, and you had every reason to
believe that it went over to Mr. Dean at the Wliite House. What
314
reason did j^ou have for believing that it went over to Mr. Dean, and
what indications do you have as to how it went to him and by whom it
was transmitted?
Mr. Gray. I am quite certain that the Office of the Attorney
General would have transmitted that to Mr. Dean, but I cannot
testify under oath as to a fact that it did go over there. I must assume
that it did.
Senator Byrd. Other than the July 21 memorandum, Mr. Gray,
did subsequent memorandums go to the White House, to Mr. Dean,
reporting on the fuidings of the FBI?
Mr. Gray. No, not subsequent memorandums, as we would term
them in our vocabulary that we use in the Federal Bureau of Investi-
gation. But I have testified that I sent over to him some 82 investi-
gative reports and some teletypes consisting of the FD-302's, the
reports of interviews of witnesses.
Senator Byrd. Why did you send those 82 — are you sa^dng that
there were 82 additional reports?
Mr. Gray. No, the}' were not memorandums. We have to distin-
guish between a memorandum or letterhead memorandum.
What I am talking about are the FD-302's, the reports of inter-
views of individuals, individual interviews conducted by an agent of
the Federal Bureau of Investigation.
Senator Byrd. Were any subsequent memorandums at all, such as
the July 21 memorandum, sent to Mr. Dean?
Mr. "Gray. To the best of my knowledge, recollection, and belief,
no. But I mil have to check before I can answer just so categorically.
I believe not, but I will check.
(Mr. Gray subsequently submitted the following document for the
record :)
Mr. Gray. After checking, Senator B3a-d, I find that there were no other
memoranda of the type of the July 21, 1972, summary memorandum whicb
were furnished to the White House or to Mr. Dean.
Senator Byrd. Please check, and if you find that any were sent,,
you Avill supply them for the record?
Mr. Gray. I ^\'ill have to respectfully decline to supply for the
record, but once again — I am in enough trouble now with names and
places and persons. We had a discourse 3'"esterday before this com-
mittee, the chairman read a letter from the ACLU, and I had a
statement prepared, and I will have to respectfully decline to submit
to the committee on the grounds that these are official records of
the Department of Justice. They reveal investigative techniques,,
and to i)ublish them is contrary to our longstanding policv.
I have passed the point of no return in this respect, Senator Byrd.
Senator Byrd. Would you indicate for the record whether or not
any such memorandums were supplied?
Mr. Gray. I will check that.
I do point out that I have made a standing offer for each
U.S. Senator who is a member of this committee to review the com-
plete Watergate file in the company of two thoroughly experienced
special agents of the FBI, who will respond to any questions that-
the Senator might have.
Senator Byrd. How voluminous are those ffies, Mr. Gray?
315
j\Ir. Gray. Well, there are roughly 2,000 serials, and we made an
estimate yesterday' that it would take a 5-day workweek of 8 hours a
day, depending, of course, on how rapidly a Senator reads, to go
over them. But I made that offer, and that includes memorandums,
in response to questions that I asked as the investigation progressed.
You know, these documents are going to show an awful lot: that
we didn't sit up there with our thumb in our mouth and do nothing.
We were pushing. I was asking an awful lot of questions, and
people were getting answers.
Senator Byrd. That sounds like a pretty big order. Are there
enough copies of these to go around?
\h\ Gray. We have got problems with this. This is an unprece-
dented offer that I have made.
I have been taken to task by the ACLU. They have written to the
committee and each Senator.
Prof. John Ellift' has written me a very scholarly letter on my
unprecedented offer.
I will have to fall back into the regular position of the Federal
Bureau of Investigation in regard to its investigation.
Senator Byrd. Would you indicate again just how voluminous
this is?
Mr. Gray. I think there are roughly 2,000 serials. They are not all
in one, you know, one file. They are broken up into file packages.
Here is a sample file package. About 25 about this size. This is a
sample file package.
Senator Byrd. And there would be 25 packages similar to this one?
Mr. Gray. That's correct.
Senator Byrd. And are there copies enough of those to go to each
member of the committee?
Mr. Gray. No, sir. I won't make copies of them. As one Senator
reads them, we pass them along.
We have problems with this. We have problems with the ACLU,
and we are going to have problems with other people.
I made the unprecedented offer. I made it because of the fact I
felt so strongly from the very beginning that the FBI's credibilit}^
as an institution was at stake and that we had to conduct this
investigation so it would stand scrutin}^ from anyone.
When it came to pass that the Ervin Select Committee was set
up, I felt it was the committee to erect the proper safeguards to
handle this type of material.
I did not envision that this committee was going to go substantively
into the Watergate investigation. I felt this committee would go
procedurall}^ into the Watergate investigation, and I think it should.
It should try to find out how the FBI conducted this investigation,
and did Gray do anything to hinder, limit, restrict, alter the standard
operating procedures of the Federal Bureau of Investigation in the
conduct of a major special investigation.
Senator Byrd, Well, Mr. Gray, the question of your confirmation
of nomination comes at a very unfortunate time. It is unfortunate
for you. It is unfortunate for those of us who sit on this committee.
It is unfortunate that the Senate itself has to make a decision on this
nomination in the context of the Watergate incident.
316
It is unfortunate for the Nation. I don't see liow the two can really
be separated. I wish that it were possible to have the investigation of
the Watergate behind us as we approach this nomination. I say this
Avith all due respect to you, but I have to ^vTestle with it as a Senator
who has to make a judgment on this.
You may feel that I have already reached a closed judgment. I have
to some extent, but if the Watergate investigation were complete and
if, in fact, as a result of that investigation, it was shown convincingly
that the FBI had thoroughly conducted an investigation in depth, and
that it did not in fact act in any way to protect higher-ups, then I
think that I would be dutybound to review my own decision.
But apparently this is not going to be the case. So we are asked to
separate one from the other — and also to separate procedure from
substance.
I can't do that in this case. If we start with the premise, as I think
I have to, that there is something about the Watergate that has not
yet been brought to light, and then if we go to the next premise, that
being that the investigative agenc}^, the FBI, did not in fact investigate
and probe in depth, and with absolute thoroughness and ^\ith absolute
objectivity — which premise I have to accept at this moment — then
when we consider that you were the Acting Director for 10 months
during tliis investigation, I have no alternative but to vote against
the confirmation.
I \\dsh that it were possible for us to be able to delay this vote on the
confii'mation until we knew what really took place with lespect to the
Watergate incident and how well the FBI really conducted the
investigation.
Mr. Gray. May I respond. Senator?
Whenever you permit me, I would like to respond.
Senator Byrd. Certainly. I am just stating to you, Mr. Gray, that
to ask that this committee divorce what happened substantively re-
garding the Watergate, is asking something that I think is impossible.
Mr. Gray. I think I pointed out yesterday to Senator Kennedy
that this is a problem of procedure and substance, mth Gray right in
the middle. It is a difficult question.
But I would submit. Senator, that procedurally we have submitted
certainly, in my humble opinion, adequate information for the Senators
to make a determination as to whether or not we went at it in accord-
ance with the standard operating procedures of the FBI, and with our
accustomed vigor and competence and professional skill.
Quite frankly, as I said to Senator Kennedy, I pushed the button
of this superb investigative juggernaut that first day and told them
no holds were barred. They were to conduct a full investigation and,
furthermore, the men ancl women involved in the FBI would not
tolerate an individual sitting at the top giving orders that were going
to rein them in.
There is no executive of the Federal Bureau of Investigation who
will testify now, next year, or 10 years from now, that any restrictions
or limitations or handcuffs were placed on them by the Acting Director
in their conduct of the investigation.
In fact, I asked an awful lot of questions. An awful lot of memo-
randa will show up in response to these questions, addressed to
some of the newspaper allegations that Senator Ervin mentioned this
317
morning. I know that each Senator has a difficult time. I think that
we in the Federal Bureau of Investigation and I personally have
demonstrated our candor and our forthrightness. We have offered
this record to you. We will be glad to begin working with you on this
record. I have also the trust placed in my hands to observe Constitu-
tional due process, to observe the right to privacy. These two are very
serious c^uestions. I am in a very difficult position and the question
you raise is a very difficult one. It is a difficult task for each Senator,
as it is for me, to sit here and not be able to go into all of this under
the proper procedural safeguards. Believe me, Senator, my interest
is in telling this committee about the men and women of the FBI,
their dedication, their spirit and their competence, and the way the}^
conduct an investigation. I could not have stopped them. No man
could have stopped them. Senator.
Senator Byrd. Well, Mr. Gray, granted all that, there are incon-
sistencies in the record already. We have talked about one with respect
to the Cleveland speech.
Mr. Gray. I apologize for that one. I tried very hard to avoid
those inconsistencies. I knew that I had to be able to testify with the
greatest degree of accuracy. The U.S. Senate is entitled to that, and
I knew this. This is a big responsibility and that is why I have tried
to thoroughly prepare this case as though I am on trial, which I am.
Senator Byrd. You also indicated, Mr. Gray, in answer to a ques-
tion of mine, that no agent had suggested a lead which had been
rejected or not pursued, and as it later developed an agent had sug-
gested that Mrs. Martha Mitchell should be questioned, but this
was not done.
Mr. Gray. I didn't reject that. Senator. I approved it.
Senator Byrd. That didn't proceed very far, as your testimony
showed.
Mr. Gray. I approved that, Senator. I didn't stop that at all. The
agent called on Mr. Mitchell and that agent interviewed Mr. Mitchell
in New York and Mr. Mitchell also called, and as it turned out, Mr.
Mitchell later offered to have Mrs. Mitchell come to Washington for
an interview if our case agent considered it necessary. Our case agent
stated he did not. Those are the facts of reference.
Senator Byrd. According to the press, Mrs. Mitchell disputed
vour
Mr. Gray. She did my initial statement where I didn't have all
of the facts at that time, and I got all of the facts after that.
Senator Byrd. Now, with reference to your unprecedented offer —
and it is unprecedented, but this is also an unprecedented hearing —
but if we presume that by virtue of the offer each Senator can ipso
facto accept it and as a practical matter that he could go through these
several odd volumes, it becomes a complete non-sequitur. We are just
as effectively kept from seeing that material as if you had not made
the offer. I have, for example, one staff member of this committee
who can spend some time on this matter. I have no member of my
personal staff who can do this. I obviously can't do much of it m3^self,
even though I personally tr}- to review the transcripts of the hearings,
and I can hardl}" stay abreast of these.
But to say that a Senator on this committee can take this volumi-
nous material and in the presence of two of your agents examine it
91-331—73 21
318
carefully, it is just impractical, and, while the offer is unprecedented,
I don't think there is the slightest chance it will be accepted and I
think you understand that. You have already indicated in answer to
niy question that you would not agree to let a couple of staff members
of this committee go through the material for the committee.
Mr. Gray. That is correct, Senator B^^rd.
Senator Byrd. And yet we have staff members who have top
security clearance. If this could be done, if some staff members of this
committee — they could be agreed upon in advance by the Chairman
and the ranking minority member — if two staff members could be
selected who could look over this material then it might be of some
benefit to the Senators who sit on this committee, otherwise, the
"unprecedented offer" really doesn't amount to a hill of beans, and I
say this with all due respect to you.
Senator Eastland. Let me say this. The}'' never turn files over to
me. I review files in the presence of an official of the Department of
Justice who has them in his possession.
Senator Byrd. If I had the time I would be very glad to accept
the offer.
Mr. Gray. Senator B3^rd, I would like to say to you that the basis
of the denial certainlj?^ is not on the basis of trust or confidence or
anything like this. It is on the basis of need to know and we enforce
this kind of restriction even within the Federal Bureau of Investiga-
tion. Even though people are cleared for top secret they do not have
the need to know. I made this offer to you as Senators and a possi-
bility, you know, is to set up another little Ervin Select Committee
within the Committee on the Judiciary and have three members of
this committee meet for the committee. I realize you have this prob-
lem, but I say your problem lies in procedure — how did we conduct
this — rather than in substance, because that is why the Tj.S. Senate
has established the Ervin Select Committee.
Senator Gurney. Would the Senator jdeld on that point?
Senator Byrd. Yes.
Senator Gurney. It seems to me this is a matter not ^\ithin the
jurisdiction of Mr. Gray, but of this committee.
If I can recall and remind the distinguished majority whip of what
we passed as a Senate resolution that set up a Watergate Committee —
I wish I had the text before me — ^but I think it provides for our staff
members to examine FBI files. Whether it does or not, if this commit-
tee deems it desirable to examine those files in any way we want to we
certainly can either decide to do so on our o^\'^l in executive session, or
if we don't think we have enough authority to do so on our own, we
can go to the full Senate. I am sure we could get a resolution passed
the very day we presented it to the Senate, should we wish to set up a
method of procedure to examine these files.
I would also say as far as the Watergate incident is concerned, I can
think of no more illuminating case in which we could determine wheth-
er an FBI Director was doing his job or not. It is all there. All we have
to do is decide how we are going to examine these files and get into
them. And I think whether we confirm or do not confirm Mr. Gray
after making such an examination, we ma}^ proceed mth it. But I do
think it is our responsibility to decide whether and how we want to
do it. y\e should not put Mr. Gray in the position of saying what we
319
ought to do, because he is torn by a number of forces here, the Ameri-
can Civil Liberties Union, other constitutional lawyers, the commit-
tee, the press, the Senate, and just about everybody. It seems to me we
have to decide what we A\dll do about this.
Thank you.
Senator Byrd. Mr. Chairman, I agree with the Senator from Florida.
I think he perhaps has made a very helpful suggestion here, one which
we ought to explore further.
My comments at this point are meant merely to direct the attention
of the committee and you, Mr. Gray, to the inability, as things are
now, for members of the committee to accept your offer and make it
really worthwhile. It would be meaningless as far as I am concerned
under the present circumstances. Perhaps the committee could es-
tablish an ad hoc subcommittee to look into this.
Senator Hruska. Would the Senator yield, unless you are almost at
the conclusion of your questions?
Senator Byrd. Yes.
Senator Hruska. I have a comment to make wdth reference to the
files.
Senator Byrd. I prefer to yield at this point. Senator Hruska.
Senator Hruska. Very well.
Mr. Chairman, I would like to state that this vSenator took 6 hours
of his day yesterday to go through these files. There are 27 sections.
They are on portfolio paper. Most of them are typewritten in single-
spaced arrangement. In addition to the 27 sections there is a summary.
There are indexes. There is a foreword. Yesterday, the Acting Director
put into the record a copy of that foreword and its substance, and if one
is available I would like to have it to read some of its statistics into
the record.
(Senator Hruska subsequently requested unanimous consent to make
the following documents a part of the record :)
Foreword
The FBI entered this case June 17, 1972, immediately upon being notified b}'
the Metropolitan Police Department of the subjects arrests on burglarj^ charges.
When shortly thereafter, subjects were deterniined to be in possession of electronic
listening devices the FBI assumed investigati\'e responsibility at the request of
the United States Attorney's office, Washington, D.C., and the concurrence of
the Criminal Division, Department of Justice.
From the very beginning this matter received top priority with FBIHQ issuing
instructions that all investigation was to be under the personal supervision of the
Special Agent in Charge of each field office where investigation was to be con-
ducted. These instructions included the fact that as manj^ Special Agents were to
be assigned as w^ere needed to insure the investigation was absolute, tiiorough,
immediate and imaginative. All leads were set out bj- telephone or teletype.
The investigation has involved 51 field offices in addition to investigation in
Mexico, Canada, Venezuela, and Germany. Through September 8, 1972, 333
Agents worked on this case expending about 14,100 man-hours. In addition, about
2,000 clerical hours were expended in support of the Agents. Some 1,550 interviews
were conducted during this period and 130 investigative reports totaling about
3,500 pages were submitted. Copies of these reports were furnished to the United
States Attorney's office, Washington, D.C., and to the Criminal Division, Depart-
ment of Justice. Further, the United States Attorney's office, in connection with
its presentation of this matter to the Federal grand jury, was kept advised on a
daily basis as to pertinent developments. Ever}- assistance was afforded that office
V)y the FBI in locating and serving subpoenas on witnesses to appear before the
Federal grand jury as well as affording any leads developed by the grand jury-
inquiry expeditious attention.
320
Memorojiaum
-y
TO
FROM
'Jr. Gcbhr,rdt
R. 2, Long
ZT AL
TV
7/72
lliT-::KCL?TION OF COMMU^aCATIOJiS
svBiECT Ja::^s ".(Altz".-: iicco?.d, ji
•BraoLAriY 0? dj:.:cc?.atic pa?.ty
katic;;al iirJiDCUA?.T£?.s, 5/17/72
DATE- February 12, 1973
1 - Mr. Felt
1 - iir. Gebhardt
1 - Mr. Gallagher
1 - Mr. Lons
1 - Mr. Kuzu.T
1 - Mr. Callahan
Mr. E A.I .
Vj. M;iha.i _^'
Sir. C^'-.i^-^ /-
Vj. C.;v,t'- .-<
St. a^<j-ti*i_
Mr. jf..:. M
Mr. \1ji>3jU
Mt. Vii:ef. E.S.
\lr. PjMs
V.-. Sojira
Mr. Waltcre
Tela. Ro."Ti
Mr. Kinfe/
Mr. A.-u5tTjng
Mr. Bo*«re
Mr. Hen-.fjyn
Ma. HerN^ig
Mr. Mioti .
he fol?.o7/ins: updatc-s statistic?.! data previously l'^ (_\
■ ■ " 'nuicates the extent of investifja-/
Tr
furnished in this case and
tion throush 1/31/73
Period of
6/17-12/31/72
Field Offices Involved
53
Legal Attaches Involved
4
Leads covered
2,670
Interviews conducted
2,321
Man-hours extended
Agents (Regular)
19,009
Agents (Overtir:e)
2, 649
21,G53
Cleric?,! (Rcjjular)
5,174
Clerical' (Overtime)
89
Additional Period Total
1/2-31/73 e/17/72 -
1/31/73
0
0
28
26
5,263
60S
137
745
225
3_
"229"
56
4
2
C98
2
347
19
617
2
73G
22
403 -f
5
400
92
5,492
♦Performed by 3']3 Agents
•The above figures concerning nan-hours expended include
FBIH.'^ ti.'.ie spent on this case.
ACTION:
Since trial in this natter hlis been co.T.pleted and the
seven subject.s are awaiting sentencing, further .invest igative
man-hour eicpenditure should bo very little. If approved,
therefore, the field v/ill be advised to discontinue- nony^^ly
submission of statistical data iR'this case.^ ^!2^>a>s>«-
JCK:DC^^ / ^L^ \ W' \ , w^ I y
(7)
nonyoiy ,
Senator Hruska. During those 6 hours, we had a sandwich and a
cup of coffee there, they had two agents, one who had been in charge
of this particuhir file and anotlier man in the office wlio was thoroughly
familiar A\ith the files. They were courteous and helpful. After reading
the summary I want to say that I then went through some of these
sections to see the modus operandi and the method by which this in-
vestigation proceeded. I was im])ressed by the absolute thoroughness
and the painstaking detail in wliich all of the aspects were pursued,
including the serial numbers of the hundreds of dollar bills that were
found and reduced to ])ossession. I was impressed with it. I think any
fairminded person would be impressed with it.
321
It has been suggested that it is a lot easier to criticize a book than to
vrrite it. I suppose that would apply to newsstories and reports of tliis
kind. I venture to say that one with a baleful look in his eye can go
into that file and find voids and soft spots, but if they are there it
wouldn't be due to the man in charge of ordering that investigation
and seeing to it that it was pursued on an immediate basis. There
were numerous telex issues.
Mr. Gray. Teletryq^e.
Senator Hruska. Teletype. And at the top of every one of those
yellow sheets, which is on onionskin i)aper, so when a file is an inch or
an inch and a half or two inches thick there is a lot of information in
it — but at the top of ever}'^ one there is the teletype and the word
"immediate," and that means get this information — day before
yesterday, not next week. By the responses that were forthcoming, and
I paid some attention to the responses, the information was pursued
and it was reported promptly.
Now, repeatedly the Acting Director was asked was such and such
a question asked. Did vou ask such and such a question. He would
say "No." Well, why not?
I want to say, Mr. Chairman, that there were 333 agents that worked
on this investigation. There were 14,100 man-hours involved, and it
covered reports having 1,500 interviews or more, with 3,500 pages, and
it occurred in some 15 or 18 States.
Then for any fairminded person to say, Mr. Gray, why didn't yon
ask that witness this or that or the other thing, I want to say that is a
totally impossible situation — one which does not reflect a great deal
of thought on the part of the man who asks such a question. Mr. Gray
is not on the firing line. He is at the pinnacle. He is at the top of this
P3Tamid and he has to flare out to the base that stretches out over the
geographical expanse of this country' or a large part of it.
Considering that fact and the fact that there has been followed in
this case, as nearly as I can determine by interrogating these agents,
the same format and the same method and the same thoroughness
and the same detail that has been followed in other cases of this kind,
it mil be for each of us that will sit in judgment on this matter to say
if it is as important as we say it is, if it is that important, if it is that
far reaching, if it is that vital, then it is for each of us to say that one
of our duties is not to see this through a soup stramer, not to see it
through the eyes of another. It is for each of us to get in there and
examine the record and say, "If I were in charge of this investigation
would I have handled it any dift'erently from \h\ Gray? "
The Chairman. Now, you saw the file. Do you think a staff man
should look at that overall file?
Mr. Hruska. Mr. Chairman, I would very vigorously oppose
any staffs man looking into that file. There is raw material in there.
Obviously, the motivations of some of these witnesses are based on
A'indictiveness or revenge or bitterness or disappointment. In certain
instances somebody had to be lying, because they were talking about
the same circumstances and they all could not be truthful. They just
could not be accurate.
Mr. Gray. That is true in the vast majority.
322
Mr. Hruska. In raw files that is always encountered and that is
the essence of the danger of turning raw files over to anyone except
in very exceptional cases.
Again I think a fair reading of the record will demonstrate that and
will convince any reader and any student of the file that that is the
fact.
If a partisan counsel goes through that file he can have us here
until next Christmas on the basis of asking questions like: Didn't the
agent do that, Why didn't you order that, Why did you stop here?
and one thing or another.
That comes within Senator Ervin's bailiwick. The Senate has said so.
This file should be read and considered on the basis of trying to
find out whether Mr. Gray did his duty as Acting Director. Did he
do it promptly? Did he do it pursuant to those methods that we
consider approved in situations of that kind? Did he do it objectively?
Did he go right down the line?
I came across those instances referred to in the press yesterday and
in other statements where some of the witnesses objected to having
counsel present at the interviews. They got in touch with the FBI
and let it be said to the credit of Mr. Gray and of his colleagues and
associates that when that request was made, every effort was made,
successfully, as far as we know, to establish contact with those
Avitnesses in order to have a confidential interview at leisurely
times and at proper circumstances where that interview could progress
without interruption and with total freedom of expression.
When this is done — -and I saw it done not once but several times in
that file— I must say to myself, here is a man doing his job.
No\v that means something to me. He could have concealed it; or,
if he didn't conceal it, at least he could have failed to mention it.
But he did mention it.
I say we ought to proceed with this matter in a businesslike way.
I made that suggestion yesterday.
There are tw ) aspects to these files. One is form. Hoav was it built?
How was it constructed? How did it actually come to its present state?
The other aspect, of course, involves the substance and the merit.
The record shows that this is a lawyer of many years' experience.
I spent 25 years practicing law before I came into the Senate, and I
did my fair share of investigatory work. Based on my background I
would say that these files show enough structure for anyone who
might want to proceed from that point on to perfect it and to strengthen
any soft spots. It shows all the benefit of a very thorough scientific
examination of the witnesses who are involved.
We ought to get hold of our common sense and direct our efforts
to the task at hand. Is Louis Patrick Gray III possessed of those
attributes as demonstrated in this investigation and other aspects of
his experience to assume to the office of FBI Director?
Mr. Chairman, if we do otherwise we will be unfaithful to our cause.
We cannot be put off by the idea of waiting to see who's conA^cted or
who's hung or who's boiled in oil as a result of the substance of the
Watergate investigation. We tried that once last year in the ITT
case, although ITT was not nominated to be Attorney General. Had
we pursued the idea suggested of some of our committee members, we
would still be engaged in litigating ITT, conglomerates and political
323
contribution while the Attorney General's ofl5ce would be run and
operated by an Acting Attorney General.
I say let us get our sense of proportion together on this thing and
not lingei indefinitely on tidbits of information we are getting.
It would be unfaii- to the 300 operatives who worked on this case —
and I am satisfied with their accuracy and zeal and enthusiasm and
competence — to sit back in the quiet of our offices and pick the thing
to pieces by saying why didn't you do this or the other thing.
Mr. Chairman, I tliink we ought to employ a little logic and plot
our course toward an early and logical conclusion to these hearings
with all our facts. We have more than enough facts now. We can
move to a conclusion. I say the fabric is wearing very thin.
If we refrain from repetition by further questions in this committee
and get into new realms and into new material here, we will be
treading on dangerous ground from the standpoint of the morale
of the FBI and the protection of their sources. 1 don't think we should
take that risk. We can refrain from taking that risk while getting
enough information upon which to base a decision for or against the
confirmation of Mr. Gray.
I am grateful to the Senator for having yielded. This is the point
in the record where I thought these comments should go.
Senator Byrd. Mr. Chairman, I am grateful to the Senator for
his eloquent exposition of how impressed he was with the material
which had been submitted to him by the FBI.
I must confess I am even more impressed by how much the Senator
was impressed by that material. He indicated that 333 agents had
spent 15,000 hours, or something to that effect, which when divided
would amount to only about 50 man-hours per person.
He also referred to the ITT matter of last year. That was precisely
the thing that bothered me at that time, which led to my vote against
Mr. Kleindienst.
I did not vote against him because of any personal antagonism
toward him. I felt that he was a very able man, a very charming
man, but there were just too many inconsistencies in the record,
too many questions that were never clearly answered. There was a
lack of complete candor on the part of some of the witnesses, in my
judgment, and we were hemmed in, as a committee, in the eflFort to
secure the information we thought we ought to have to make a reason-
able and fair judgment on the nomination and, as a consequence, I
felt I had to vote against the nomination.
Mr. Gray, in that case, was the decision maker after Mr. Kleindienst
stepped aside. He had the role of making decisions as to what infor-
mation would be submitted to the Judiciary Committee and how
much information.
We are faced with somewhat the same problems in this instance.
This is the first time, after all, that any committee other than an
Appropriations Committee has had an opportunity, or at least has
ever taken the opportunity, to question the FBI's record of per-
formance.
If it were possible to review this confirmation every 4 years, we
might be able to — at least, I might be able to— give Mr. Gray the
benefit of the doubt and proceed on the theory that, 4 years from now,
the committee would have another opportunity to look at the record,
but we don't have the promise of that opportunity.
324
So it does rest, as Senator Hriiska pointed out, on whether or not
Mr. Gray did, in fact, fulfill his duties properh\ I don't see how we
can reach that conclusion with the restrictions that are placed upon us.
Senator Gurney. Would the Senator yield briefl}^ again?
Senator Byrd. Yes, sir.
I was going to sa}^, so much for the unprecedented offer at this point.
I jie\d to you.
Senator Gurney. Thank you.
First of all, I certainly agree with the Senator that this is a matter
that we have to resolve, and I commend him for bringing it up. I
didn't want the Senator to think that I was at all critical in my com-
ments earlier.
Senator Byrd. No, I didn't interpret them that way at all.
Senator Gurney. Then the other thing is, I now have before me a
cop3^ of the Senate resolution that set up the Watergate investigating
committee. It does give access to any agency and all of its material to
any members of the Select Committee or anv investigatorial or legal
assistants designated b}^ it, that is, by the committee, or its chairman
or ranking minorit}^ member.
That is what we did a few days ago pertaining to this very Water-
gate matter. That was my suggestion, as the Senator will recall, a
few minutes ago.
Senator Byrd. Mr. Gray, a^ou stated in ^^our insertion for the record,
page 114, that Supervisor John Kuhl of the Washington field ofhce:
Contacted ]\Ir. Alexander P. Butterfield between six o'clock and seven p.m.,
June 17, 1972, to determine ]\Ir. Hunt's affiliation with the White House and to
inform the White House that Mr. Hunt may be involved in this matter which
was being investigated by the FBI.
This was the first contact by the FBI with the White House concerning this
matter.
You also stated in an insertion responding to a question on page 168
that as a routine matter, when the FBI receives an allegation of
criminal nature against an employee in the executive branch, the
White House is advised.
In your insertion for the record, on page 113, j'^ou advised that the
FBI did not inform Air. Elu-hchman that Mr. Hunt was involved;
is that correct?
Mr. Gray. Let me just get the inserts. Senator B3^rd, if you will,
please.
Yes, my insert for page 113:
On checking the record, I find that the FBI did not inform ]Mr. Ehrlichman
that Mr. Hunt was involved.
However, late in the afternoon of June 17, 1972, Mr. Alexander P. Butterfield,
Deputy Assistant to the President, was contacted by our Washington field ofTice
to ascertain what connection Mr. Hunt had with the White House.
Senator Byrd. I also noted in your response to my question, that
you inserted for the record, on page 120, with respect to interviews
with White House people, that Mr. Ehrlichman was interviewed on
July 21, 1972.
I presume this resulted from your consultation with Assistant
Attorney General Petersen, to which you referred on page 63, when
you were discussing that before agents went that high, he wanted
to make sure before they went on?
325
Mr. Gray. I have to get the teletypes and get the msert.
My recollection is that the recommendation came up, and I said
check with the Department, and approve it. Now, I have to check
the record on that.
Is that an insert page?
Senator Byrd. On page 63, you said:
One of them, I think the matter of whether or not to interview John Ehrhchman
came up, and of course this is getting pretty high and they felt they better get
the boss' permission before they went that high, and I checlced with Assistant
Attorno.y General Petersen, and I said, "Go."
Mr. Gray. Yes, I see the testimony and I will have to get the
actual memorandum and give you the actual facts on that.
That is my recollection. There was no hesitancy in interviewing
J\lr. Ehrlichman and it may be that it will turn out that in the course
of the grand jury, that the assistant U.S. attorney conducting the
grand jury did it. But I \\-ill get the facts because I am not certain
enough of them now to testify under oath.
We will have to clig it out of the summary or right out of the teletype.
Senator Byrd. And you will supply that for the record?
Mr. Gray. Yes, sir.
(Mr. Gray subsequently submitted the following document for
the record:)
Mr. Gray. After checking the records, Senator Byrd, I find that on July 17,
1972, Assistant United States Attorney Silbert requested Washington Field
Office to interview Mr. Ehrlichman regarding the activities of Hunt and Liddy
while they were under his employment at the White House and to obtain any
documents pertaining to travel and expense accounts at the White House of Hunt
and I;iddy. Washington Field Office sent a teletype requesting authority for this
interview" and I told Assistant Director Bates to check with Assistant Attorney
General Petersen to see if he thought there was any objection to our interview
of Mr. Ehrlichman at the White House. Mr. Petersen said he certainly had no
objection to such an interview. Mr. Bates told him their interview would be
directed at specific matters. Mr. Petersen said this was certainly logical and he
had no objection whatsoever. The results of the discussion between iSIr. Bates
and Mr. Petersen were furnished to me on July 20 and I approved the interview
of Mr. Ehrlichman. Mr. Dean was contacted by our Washington Field Office
to set up interview of Mr, Ehrlichman and he was interviewed on July 21 in Mr.
Dean's presence.
Senator Byrd. On page 143, 1 asked whether you had ever discussed
am^ matter relating to the investigation of the Watergate affair with
anvone on the Committee to Re-Elect the President, and you said,
"No, sir."
I asked the question about Mr. John Mitchell. You said, "No, sir."
Question: "Or with anyone from the White House?"
"Yes sir."
Question: "Who?"
Yo\n- answer: John Wesle}^ Dean, counsel to the President, and I
think on maybe a half a dozen occasions with John Ehrlichman."
Would you tell the committee when those occasions were?
Mr. Gray. I don't know that there were a half dozen. That w^as an
estimate. My recollection is that early in the game, there were pro-
cedural questions with regard to interviews of White House personnel.
That is my recollection of it.
Senator Byrd. Are you sa^-ing that your inquiry- was of Mr.
Ehrlichman as to what White House personnel you could interview?
Mr. Gray. No, sir.
326
Senator Byrd. Or had interviewed?
Mr. Gray. No, sir, not what White House personnel I could inter-
view.
I never asked that permission of anybody.
Senator Byrd. What was the nature of the
Mr. Gray. Procedure. I told him we were going to conduct an
aggressive, full investigation, and we had some indications that there
were probably — this is my recollection of our conversation — that we
probably were going to have to interview people over there, but we
did not know.
I can remember two in that first week after I came back. I was in
California that weekend and I came back — I think I was back on the
21st, Monday, Tuesday, Wednesday — I believe Wednesday was the
first day in the office.
Senator Byrd. You can recall what?
Mr. Gray. Two telephone calls that week.
Senator Byrd. To whom?
Mr. Gray. To Mr. EhrUchman, I beheve.
Senator Byrd. By you?
Mr. Gray. B}^ me.
Senator Byrd. Do j'ou have a memorandum as to what was said in
those conversations?
Mr. Gray. No, I do not.
Senator Byrd. What is your recollection?
Mr. Gray. My recollection is that those were procedural questions
that we were discussing. However, there was no question about whether
I could or could not interxdew anyone, and I say this under oath, no
one at the White House told me.
Senator Byrd. These were people, for example
Mr. Gray. When are you going to get with it; how are you going to
get to the ^\itnesses.
Senator Byrd. Get to what?
Mr. Gray. The investigation, to go to the witnesses.
Senator Byrd. Wny would you ask Mr. Ehrlichman that?
Mr. Gray. Because this, after all— as you know— is the President's
staff and we just don't barge in there, Senator. I wouldn't do that.
I would have no hesitancvin telling you that. I am just not going
to go barging in there and start investigating all over the place. I am
going to get some procedure and ground rules established and convey
to them, as to the Attorney General, that the credibility of the FBI
is at stake. And they agreed. I didn't have any problem there.
Senator Byrd. How did your conversations go?
Mr. Gray. I have just been telling you how the conversation went,
Senator Byrd.
Senator Byrd. Did you indicate whom you might want to investi-
gate?
Mr. Gray. At that point in time, we really didn't know.
Senator Byrd. Was any reference made to Mr. Hunt in those
conversations?
Mr. Gray. I don't think that I talked specific names at all with Mr.
Ehrlichman.
Senator Hruska. Would the Senator yield?
Senator Byrd. Not just at that point— yes, I yield.
327
Senator Hruska. As a matter of fact, Mr. Gray, is that unusual?
Before your agents went into the staff of th.e Democratic National
Headquarters," did j'ou not call Lawrence O'Brien out of common
courtesy and say, this is what I propose to do, do 3^ou have any
ground rules that you would like to have us observe?
Mr. Gray. Absolutely. Positively; I did.
Senator Byrd. Mr. Hruska, he went into that in great thoroughness
the other day and I don't see the point of that with respect to the
questions I am tr^-ing to ask.
Now, Mr. Gray, what were the dates of those two calls?
Mr. Gray. I don't remember the exact dates. They were early in
the week— had to be 21st, 22d, or 2.3d of June.
Senator Byrd. Can you state for the record specificall}'?
\[t. Gray. I would have to try to check my telephone records. I
could do that bj- going to the FJBI telephone logs. I could do that,
certainly.
Senator Byrd. Very well, if you please.
Aside from the two telephonic inquiries to which you just referred,
were there additional occasions when you discussed this matter with
Mr. Ehrlichman?
Mr. Gray. I think probably overall I can recall going over to the
White House one evening to meet with him regarding procedural
matters again. I would have to check, but I would estimate maj'be
6, ma3'be 10 occasions throughout the investigation. My records would
show that and I would be happy to give them to you, Senator.
Senator Byrd. You may have discussed these matters with Mr.
Ehrlichman 6 to 10 times?
Mr. Gray. I sa}- that is an estimate right now. I will have to check
and submit the facts for the record.
Senator Byrd. All right; if you would submit for the record the
dates anil times of those meetings.
(Mr. Gray subsequently submitted the following document for the
record :)
Mr. Gray. To the best of my recollection and ujDon checking my records, I
find that my contacts with Mr. Ehrlichman regarding the Watei'gate investigation
were as f ollow s :
Date Time Appointment
June 28, 1972 6:30 p.m Re safeguarding investigative procedures against leaks.
Oct. 19, 1972 2:35p.m__ Do.
Date Time Telephone calls
June 21, 1972 9:35 a. m (From John Ehrlichman) re safeguarding investigative procedures against leaks;
advised we were handling the case as a major special with usual precautions
for such a case and very restricted distribution of information.
June 28, 1972 11:17 a.m To ai range an appomtment v.iih Mr. Ehriiciiman.
Oct. 19, 1972 1:55 p.rn (From John Ehrlichman) to request that I meet with him that afternoon.
Senator Byrd. Now, was anj'one present when you discussed this
with Mr. Ehrlichman at the White House, anyone else present on any
occasion?
Mr. Gray. No, I believe not, but that would show on my appoint-
ments and I would certainly- be happ}- to provide that.
328
Senator Byrd. Wliat would be the necessity of continuing to meet
and talk with Mr. Ehrlichman after you had had the initial discussion
with him to proceed?
Mr. Gray. I don't know, and I am not going to go down that path
until I can review my appointment records and review my recollection.
I won't say I met with him 6, 8, 12 times, until I know. It may be less.
But I am talking from recollection.
Senator Byrd. Can you indicate also for the record the content of
the discussions that took place in each of those meetings?
Mr. Gray. To the best of my recollection, yes, I will.
Senator Byrd. The dates and whether or not anyone else was
present, what you discussed in each instance?
Mr. Gray. Wliether it was by telephone, whether it was by meetings.
Senator Byrd. In the material that you supplied for the committee,
page 53 there was included a letterhead memo dated July 21, 1972,
that you prepared at the request of and sent to John Dean, counsel
to the President. On page 10. of that memo, you state:
It was determined from INIr. John Dean that the personal effects of Everette
Howard Hunt had been removed from Hunt's office in the Executive Office
Building and brought to his, Dean's office. This material which was turned over
to the FBI on June 27, 1972, included ancillary equipment for the transceivers
and other equi])ment identical to items known to have been purchased by James
Walter INIcCord, Jr.
Wliat were the circumstances involved in Mr. Dean turning over
the equipment in Mr. Hunt's office 10 days after the break in?
Mr. Gray. This came up as a result of agents' desiring to find out
whether or not Mr. Hunt had an office there. Mr. Dean said that he
would have to check whether or not Mr. Hunt had an office there and
would ascertain that.
Indeed, at this point in time, the Wliite House records indicated
that Howard Hunt had ceased his employment as of March 29, 1972.
We had previously ascertained that fact. Later we were delivered
these materials and an inventory was made of these materials that
were delivered to us. Included among those materials were a gun,
electronic equipment tying in Himt with the type of electronic equip-
ment that was possessed by Mr. McCord, and top secret materials
involving South Vietnam dispatches.
Senator Byrd. Did Mr. Dean volunteer this evidence?
Mr. Gray. We really didn't ask him for it. We didn't ask for a
search warrant because at that point in time, when we were talking
with Mr. Dean, we really didn't know what we were looking for.
_We didn't ask for a search warrant because we couldn't specify
with particularity what we wanted. We didn't know.
Senator Byrd. I noted the FBI interviewed Mr. Dean on June 27;
is this when the evidence was turned over?
Mr. Gray. The evidence, as I recall, was turned over on June 26.
Yes, this material was furnished to us on the morning of June 26, 1972.
Senator Byrd. You have indicated that there was dectrouic bugging
equipment and there was a gun involved.
What other evidence was turned over to the FBI at this time by
Mr. Dean?
Mr. Gray. I would have to go to the inventory. There was a two-
page inventory, as I recall. It is an exhibit to o\ir summary, and I
will produce that. It is a rather extensive inventory.
329
[Mr. Gray subsequently submitted the following document for
the record :]
Federal Bureau of Investigation,
July 3, 1972.
Mr. John Dean, Legal Counsel to Richard M. Nixon, President of the United
States, Executive Office Building, 17th and Pennsylvania Avenue, N.W., Wash-
ington, D.C. (WDC), provided Special Agents Daniel C. Mahan and Michael
J. King of the FBI, WDC, one cardboard box, which he stated was the effects
of Mr. Everette Howard Hunt taken from Room 338 of the Executive Office
Building. The effects contained in this box provided by Mr. Dean are listed as
follows:
One small metal box;
One .25 caliber automatic Colt revolver, bearing Serial Number 321803;
One clip for this revolver, containing live ammunition;
One holster;
One Rolodex file;
One copy of the book "Pentagon Papers";
Numerous sheets of carbon copy papers;
Two White House pads;
Numerous sheets of White House stationer}-;
One desk calendar;
A quantit.v of office supplies, three stamp pads, scissors, pens and pencils,
scotch tape, staples, staple gun, glue, and a clipboard;
Two folders (instructions of office operation) ;
One blanket;
One plastic carrving case.
Interviewed on 'June 27, 1972, at Washington, D.C. File No. WFO 139-166;
by SAs Daniel C. Mahan and Michael J. King. Date dictated June 29, 1972.
Federal Bureau of Investigation,
Date of transcription: Jul}' 3, 1972.
]\Ir. Fred Fielding, Assistant to the Legal Counsel to Richard M. Nixon,
President of the United States, Executive Office Building, 17th and Pennsylvania
Avenue, N.W., Washington, D.C. (WDC), furnished Special Agents Daniel C.
Mahan and Michael J. King of the FBI, WDC, one large cardboard box sealed
with tape and marked with pen "Top Secret".
An inventory of the contents of that box is listed as follows:
1. One brown enveloiae marked "Howard Hunt, Eyes Onlj-, Personal,
Unclassified".
2. Six brown envelopes containing classified material relating to the "Pentagon
Papers".
3. One tan folder marked "Ellsberg" containing numerous papers concerning
one Daniel Ellsberg.
4. One tan folder marked "Pentagon Papers" containing newspaper articles.
5. One tan folder marked "Time and Pay Records" containing verification of
hours worked at the White House.
6. One tan folder marked "Correspondence" containing copies of letters.
7. One tan folder marked "Press Contacts" containing press contacts and
newspaper articles.
8. One tan folder marked "John Paul Vann" containing a newspaper article.
9. One empty graj' folder.
10. One black attache case containing the following list of items:
Four Kel-Com Transceivers Technical Manual and Operating Instruction — Bell
and Howell 148-174MCS;
Two antennas — UG-447/U and numbered 74868;
RG-58A/U, Belden 8259 Antenna Lead Wire;
Four rechargeable model Bl nickel cadmium batteries — Bell and Howell;
One tear gas cannister/ General MK VH, M/G. General Ordnance Equipment
Corp., Pittsburgh, Pa;
Two microphones — simulated chapstick containers;
Three antenna leads;
Two earphones, numbered 8813, 9042;
Four antennas, bendable wire;
Six jack wires;
330
One shoulder harness with white lead wire and phone jack;
Three shoulder harnesses;
Three belt harnesses ;
Three operating instructions for Bell and Howell Portable Transmitter;
One Mobil Oil Co. map of Delaware, Maryland, Virginia and West Virginia,
with pencil circle around VVarrenton, Virginia area and with pencil circle around
Union Station area;
Two lead wires with black end and pink end;
One Avis rental car map of the Baltimore, Md., and WDC area, with circles
around junction of Route 695 and 195, circle in the area of junction with George
Washington Memorial Parkway and 195, circled area of junction with George
Washington Memorial Parkway and Route 166, circled area of junction of Capital
Beltway and Maryland Route 190 (River Road), circled area of junction with
1270 and 1495, circled area of Campbell Corner, Maiyland, circled area of 14th
and K Streets, N. W., with a pencil route traced from the House of Representatives
Office Buildings to the 14th and K Street areas.
Interviewed on June 27, 1972, at Washington, D.C. File No. WFO 139-166; by
SAs Daniel C. Mahaa and Michael J. King. Date dictated June 29, 1972.
Senator Byrd. Did the FBI believe Kir. Dean turned over every-
thing that had been taken from Mr. Hunt's safe?
Mr. Gray. I know allegations have been made that this did not
occur. This came up in October, as I recall, when I think there was a
motion to suppress evidence filed b}^ Mr. Hunt, and his attorney. At
that time we again went into this allegation, with the assistant U.S.
attorney and with the Assistant Attorney General in the Criminal
Division, legarding a pocket notebook and a Hermes notebook.
I think I am correct in saying that the agents went to stores here in
Washington trying to identify a Hermes notebook or a Hermis note-
book, whatever that is. But the allegations were made in that motion
to suppress that this pocket notebook and this Hermes notebook w ere
not turned over.
That was not found in any of the effects of Howard Hunt. This was
looked into in the presence of the special agent, the assistant U.vS.
attorney — this was at the time we were preparing to respond to that
motion — and the Assistant Attorne}^ General in charge of the Criminal
Division.
And there is no evidence at all that that pocket notebook and that
Hermes notebook were there.
Senator Byrd. Was Mr. Dean subsequently questioned?
Mr. Gray. He was questioned at that time, ^^es; he was. Yes, that is
correct.
Senator Byrd. On what date was he questioned?
]Mr. Gray. I will have to get the date for you for the record.
(Mr. Gray subsequently submitted the following document for the
record :)
Mr. Gray. Upon checking the records. Senator Byrd, I have learned that on
January 4, 1973, in pretrial preparation, Mr. Dean, Mr. Kehrli and Mr. Fielding
were all questioned by Assistant U.S. Attorney SiU)ert, in the presence of Assistant
Attorney General Petersen of the Criminal Division and a Special Agent of our
Washington Field Office in Mr. Petersen's office at the Justice Building.
Senator Byrd. Was he questioned subsequent to the first interroga-
tion? Were there followu])s?
Mr. Gray. No; I will have to look at the date of the list of inter-
views. I am talking now about \\'hen he was questioned regarding the
motion to suppress and the fact that there were items missing from
the material turned over to us.
Senator Byrd. Are you con\inced that there was no effort to conceal
anything?
331
Mr. Gray. I am unalterably convinced of that fact.
Senator Byrd. What convinces you?
Mr. Gray. The fact ^\'e looked into it and checked it all around and
it was inquired into again when we were prepared to respond to the
motion to suppress. Those people were probably going to be called
as witnesses, you know, not by the Government and we had to know
exactly what we were going to say.
Senator Byrd. What did \h\ Dean say about his acts?
Mr. Gray. I don't know.
Senator Byrd. Did Mr. Dean make any written statements about
his actions in the matter?
Mr. Gray. I don't know. I will have to inquire into that, because
that questioning was not done by us. That was in connection with
the pretrial preparation and in connection with that motion to
suppress.
(Air. Gray subsequently submitted the following document for the
record:)
Mr. Gray. I have had the record checked, Senator, and I have been informed
that Mr. Dean did not furnish a written statement to Assistant U.S. Attorney
Silbert. In addition, he did not furnisii any written statement to the FBI.
Senator Byrd. Did you ever seriously consider the possibility — or
did any one of your agents — that Mr. Dean himself might have acted
illegally or improperly by taking these effects for a week?
Mr. Gray. I did not, particularly in view of what was turned over
to us, when I saw the materials that were turned over to us. I felt
they were incriminating enough that if anybody was going to remove
anything, they would certainly have removed the gun and electronic
equipment and the South Vietnam dispatches.
Senator Byrd. I also note that Mr. Dean sat in on all interviews
conducted with White House personnel.
I believe you stated to Senator Kennedy he did so in his capacity as
legal counsel to the President?
Mr. Gray. I believe I repeated the statement, and I also incor-
porated by reference my previous testimony because I can't remember
exactly what I said yesterday. But I believe I said he sat in in his official
capacity as counsel to the President and in the conduct of his inquiry
for the President, but not as counsel for the interviewees. That is my
understanding of it.
Senator Byrd. How did you learn of this procedure?
Mr. Gray. This procedure developed first with a telephone call mth
John Dean where we were discussing the procedure and he stated that
he was going to do this and then I think the arrangement, the actual
scheduling of the appearances before the agents with the White House
witnesses, were made direct with Mr. Dean.
Senator Byrd. Did you question the propriety of his sitting in on
the interviews?
Mr. Gray. I can't remember with specificity and certainty whether
or not I questioned it, and I know that my testimony has been reported
in the paper.
I will have to refer back to that testimony yesterday and incorporate
it, too, by reference.
I haven't seen it yet. But if that man, in his official capacity as
counsel to the President, is charged with conducting an inquiry by
the President, no, I certainly would not object.
332
I think I stated yesterday that our preference in the FBI is not to
have an attorney present when we conduct an interview. But in today's
world it is happening more and more that an attorney is present and
we are meeting these situations.
But it is not, Senator Byrd, the norm and it is not our preference.
But this is also not just any case, either.
Senator Byrd. According to Mr. Warren, the White House Deputy
Press Secretary, Mr. Dean's presence was initially requested by
several staff members. Do you know if that was in the role of their
attorney, rather than the investigation of the White House personnel
that might be involved in the Watergate incident?
Mr. Gray. No; I do not know the facts on that.
The Chairman. I understand that Senator Byrd w^ants to go at 1
o'clock.
We will go until 1 and reconvene at 2:30.
Senator Byrd. I thank you, Mr. Chairman.
Also, according to Mr. Warren, Mr. Dean decided to attend each
session as a matter of uniform policy. Was this decision made uni-
laterally by Mr. Dean; do you know?
Mr. Gray. I don't know how that was decided. I don't know the
facts on that.
All I know is that I w^as telephoned, and I discussed
The Chairman. Senator Hruska requests unanimous consent that
there be inserted in a suitable place in his remarks the text of the
foreward to the summary of the Watergate investigation file, plus the
February 12, 1973, memo showing the extent of that investigation as
of January 31, 1973.
Is there objection?
It wdll be admitted into the record.
[The documents referred to are printed above in Senator Hruska's
remarks.]
Senator Byrd. Mr. Gray, j^esterday, White House Press Secretary
Warren stated that CRP attorneys were present during the inter-
views with CRP personnel at the insistence of the Committee to
Re-Elect the President. Now, some CRP personnel complained about
this procedure and asked to be interviewed privately.
Did Mr. Dean acknowledge this to you?
Mr. Gray. No; I am not at all certain that I even discussed that
with him or that these things existed. What complaints are we re-
ferring to. Senator B3rrd?
Senator Byrd. The pressure on the CRP people by CRP attorneys.
Mr. Gray. No; the only evidence that I would have of that would
be the fact that there were individuals there who contacted the
Federal Bureau of Investigation and asked to be interviewed sepa-
rately, and we did interview them separately. But nobody made a
direct complaint to me.
Senator Byrd. In your July 21 memorandum, it was indicated that
numerous interviews were conducted with employees at the Commit-
tee to Re-Elect the President. At each interview, at the committee's
insistence, an attorney of the committee was present.
Several persons subsequent to the interviews conducted at the
committee contacted the FBI, Washington field office, and requested
to be further inter\dewed away from committee headquarters and
without the knowledge of the committee officials.
333
Hovr many persons made such requests?
Mr. Gray. Senator, I don't know whether I ought to give that
information, because the more information 3'ou give the easier it \xi\\
be to track those people do^^^l — but there were more than one.
Senator Byrd, I will not ask you for theu' identit}^ at this time,
therefore.
Were such follo^^'up interviews conducted?
Mr. Gray. They were conducted exhaustively; 3'es.
Senator Byrd. Without an}' attorne}^ present?
Mr. Gray. That is correct, sir.
Senator Byrd. Were all persons who requested to be so interviewed,
were they, in fact, interviewed subsequenth^ without an attorney-
present?
Mr. Gray. To the best of m}^ knowledge, information, and belief.
I placed no impediment in the way of that tA^pe of procedure, none
whatsoever.
Senator Byrd. How did the subsequent testimony square with the
testimony that was adduced prior thereto
Mr. Gray. Additional information was
Senator Byrd. When an attorney was present?
yir. Gray. Additional information was provided, the tj'pe that "I
saw this, I saw that, I think this was going on."
They were helpful, no question about it, they were helpful.
Senator Byrd. Can 3^ou supply the committee with memoranda
that will indicate what new evidence was brought out when attorneys
were not present?
Mr. Gray. Senator B3'rd, that is available in the file, and it would
be pointed out by the two special agents with the file, but I would
not supply any memoranda, sir.
Senator Byrd. Is there any information you can supply for the
record which would indicate what additional information, if any, was
adduced in the subsequent interviews of such persons?
Mr. Gray. I would rather not. Senator Byrd, for reasons that I
have previously given. The}^ are available with the two agents and
they will direct you right to those interviews, the fu'st one as well as
the second one.
Senator Byrd. I believe 3-ou stated to Senator Kennedy that you
would have preferred not to have had Mr. Dean present; is that
correct?
Mr. Gray. I was stating that in context of the standard FBI
preference. We don't prefer to have any attorney present, whether
he be Mr. Dean, or Mr. Edward Bennett Williams, or Mr. Kenneth
Parkinson, or Joseph Califano, or any attornev. That is a preference
of the FBI.
Senator Byrd. Was any objection made at the time the CRP
employees were being interrogated? Was any objection made to the
presence of an attorne}'?
Mr. Gray. Bv whom, sir?
Senator Byrd*! By the FBI.
Mr. Gray. My recollection is that that was handled right there at
the Washington field office, but there was no objection made.
Senator Byrd. WI13"?
Mr. Gray. I don't know why. We have a choice there, really. If
the individual saj^'s he is going to be interviewed with the attorney
91-3.31—73 22
334
present, and if this is the only way we can get the interview, we have a
choice of saving we are not going to take the interview or take it under
those concUtions.
Senator Byrd. The witness did not say that, though, did he?
Mr. Gray. I don't know in detail what happened there.
Senator Byrd. They subjected themselves to such an interview
and later contacted the FBI, asking to be interviewed further outside
the presence of an attorney?
Mr. Gray. That is right; they were people who felt they could
discuss matters more freely without an attorne}^, and we gave them
interviews and they were intensive, and covert, and confidential.
Senator Byrd. But you say there was no indication that the FBI
objected to the presence of the attorney in the first instance?
Mr. Gray. No, I tell you what our preference is. But we are going
to take the interview in a case like this, however we can get it, because
of its magnitude.
Senator Byrd. Can you indicate for the record whether or not
objections were expressed by the FBI?
Mr. Gray. I will have to check into that and determine whether
or not there were.
Senator Byrd. Would j^ou indicate so for the record?
Mr. Gray. Yes, sir.
(Mr. Gray subsequently submitted the following document for the
record :)
Mr. Gray. After cheeking, I have been informed that the Washington Field
Office Agents told Assistant U.S. Attorney Silbert the FBI woald prefer to conduct
interviews of Committee to Reelect the President (CRP) people with no CUP
attorney present. Mr. Silbert replied he was aware of the FBFs desire to conduct
interviews under those circumstances, that he had discussed this with Mr. Parkin-
son and had told Mr. Parki ison that it wo ild be agreeable for the CRP attorney
to sit in oi isiterviews of CRP people provided the attorney did rot in any way
imjjede the FBFs interview and investigatioa. On June 23, 1972, the Agents en-
deavored to CO iduct interviews of CRP people but were told by these j^cople that
they were under instructio is to have any interview set up through CRP attorneys
and they could not submit to an interview without the CRP attorney being pre-
sent. The Agents contacted Mr. Silbert and told him of this. Mr. Silbeit reoori-
tacted Mr. Parkinso.i and told him that the FBI wanted to coiduct interviews
without the presence of an attorney. Mr. Parkinso i refused to allow interviews
without an attorney being present and our interviews proceeded with one of the
CRP attorneys being present.
Senator Byrd. Who was the attorney on the Committee to Re-
Elect the President who was present at the interview?
Mr. Gray. Several attorne3^s, but they all didn't sit in. Mr. Parkin-
son, O'Brien, Kissler, Mr. Jackson, Mr. Zeam.
Senator Byrd. Did you make any attempt to dissuade Mr. Dean
from sitting in on the interviews at the White House?
Mr. Gray. I do not believe that I did. I believe that I told him
what our preference was, but I also believed and I indicated in his
capacity as counsel to the President and imder these circiunstances
that this was the way the interviews would be conducted. I do not
believe that I told him No, you cannot do this.
wSenator Byrd. Why didn't you?
Mr. Gray. Because I don't think I was in any position to tell him
No, you cannot do this, when he tells me he is going to attend in his
capacity as official counsel to the President.
335
If we want the interview, we take it the best way we can get it.
Senator Byrd. Did you consider interviewing the White House
personnel without Mr. Dean being present?
Mr. Gray. I don't think this thought entered our minds. It cer-
tainly didn't enter mine, and I am barkening back now to those early
clays, trying to recollect whether that thought entered my mind,
whether I considered the possibility of being able to so conduct those
interviews.
Senator Byrd. You said you were trymg to barken back?
Mr. Gray. I have no clear recollection as to v/hether or not —
no, I don't remember whether or not I did.
Senator Byrd. So you apparently didn't object to various — ■ — -
Mr. Gray. No, I was not really in a position to object. I saw
nothing wrong with it. If the counsel to the President of the United
States tells me tluit he wants to attend interviews of individuals who
are members of the President's staff — including some highl}^ placed
ones — and that he is charged with conducting an inquiry by the
President to determine whether any of these fellows are involved, I
am not going to question that, Senator.
Senator Byrd. What kind of answers to questions do you think j^ou
will get in that kind of situation?
]Mr. Gray. I have no idea.
Senator Byrd. Do you not think the White House personnel are
going to be intimidated b}' the presence of Mr. Dean?
Mr. Gray. If they had any involvement, I would say perhaps they
woidd be intimidated. That really depends upon their involvement.
It goes to the mens rea— of wiiether you have a guilty mind or some-
thing to hide.
Senator Byrd. This is what you are trjdng to get at, and with Mr.
Dean present.
^.ir. Gray. Sure, but we have lots of ways to get at it.
Senator Byrd. What ways did you use in this situation?
Mr. Gray. This was a pretty big investigation, you know. We
pursued an awful lot of leads. When you do this sort of thing, you
put together a broad mosaic and evidentiary pattern.
Senator Byrd. W^hat other leads did you receive?
Mr. Gray. There were over 2,300 of them.
Senator Byrd. Specifically what other leads were pursued in trying
to get the information from the White House personnel?
]Mr. Gray. W^e interviewed the White House personnel. We took
what they had to say and if there were any leads, we followed them
out and we conducted our standard investigation and put together a
total mosaic, a total evidentiary pattern.
Senator Byrd. But all of your interviews of White House personnel
were in the presence of Mr. Dean?
Mr. Gray. Senator, 30U have asked me that question several times,
and I have answered it and that is my testimony of record.
Senator Byrd. But you have indicated you have other ways of
securing information. What other leads — you have indicated there
were leads that were followed in making up this mosaic — what other
leads were followed?
Mr. Gray. From every bit of evidence that we had and that we
pursued. This put together the sum total investigative report, and
336
I feel quite certain that if any of those individual members of the-
White House staff had asked for an inter^^ew with us, we would inter-
view quietly and away from the White House.
Senator Byrd. So no one asked for such subsequent inter\'iews?
Mr. Gray. To the best of my knowledge and recollection, no, sir.
Senator Byrd. But you indicated that — I take it that there were
leads that developed as a result of the inter^dews which were conducted
in the presence of Mr. Dean?
Mr. Gray. I was talking in the sum total of the investigation, the-
over 2,300 leads that enable you to put together a total pattern. ,
Senator Byrd. So there were no leads whatsoever
Mr. Gray. Oh, I won't make that statement without looking at
the interviews of these indi\dduals.
Senator Byrd. Perhaps 3^ou could do that, would you, for the record,
and indicate w hat followups resulted from the interview s?
Mr. Gray. I can look at the FD-302's, and see what leads were'
generated as a result of those interviews.
(Mr. Gray subsequently submitted the following document for the
record :)
Mr. Gray. But, I believe I must again decline, Senator Byrd, to provide the
Information for the public record. It is information of great confidentiaUty and, of
course, will be available for your inspection.
Senator Byrd. Did you ask advice of your legal counsel as to the'
procedure, ha\ing Mr. Dean sit in or inter^^ews?
Mr. Gray. No, because I was acquainted with the standard FBI
policy.
Senator Byrd. What is that standard FBI policy?
Mr. Gray. Senator, I gave you that earlier when I said it is our
preference to inter ^iew not in the presence of anybody's counsel,
whether Williams, Califano, Mr. Parkinson, any attorney, anywhere
in the United States. That is our preference. But we are not always
able to indulge our preference, because today more and m^re people
are asking to be inter\iewed in the presence of their attorneys. It is-
not our normal practice, and I don't want the record to be clouded or
obfuscated on this at all. It is not our normal practice. It is not our
preference with regard to any attorney.
Senator Byrd. Several persons who w^ere interviewed were employed
at the Committee To Re-Elect the President and indicated that they
would prefer to be interrogated subsequent thereto and outside the
presence of an attorney. Do you believe there was any possibility that
Wliite House personnel might have had similar feelings about Mr.
Dean's presence and might have felt constrained?
Mr. Gray. I can't speculate on that at all. That is a matter for
conjecture. To the best of my knowledge and recollection, 1 have no
memory of any such request coming to us. If it did, we would have
inter view^ed them.
Senator Byrd. Did the FBI inquire as to who suggested the pro-
cedure of having an attorney present when members of the CRP
w^ere being interrogated?
Mr. Gray. I believe that was the committee itself, the Committee
To Re-Elect the President.
Senator Byrd. And who in the name of the committee?
337
Mr, Gray. I don't know. I will have to check that.
Senator Byrd. And who else?
Mr. Gray. I don't know. I may have seen it, but I don't remember.
I will have to check it.
Senator Byrd. Indicate who requested this procedure and by
what means of communication. Would 3'ou do that for the record?
Mr. Gray. Yes, sir; I will.
(Mr. Gray subsequently submitted the following document for
the record :)
Mr. Gray. After checking, I have learned that on June 20, 1972, the Demo-
cratic National Committee filed a civil damage law suit against the Committee
To Reelect the President. Either one or two da5's after this filing, Mr. Kenneth
W. Parkinson contacted United States Attorney Titus and said he was repre-
senting the Committee To Reelect the President in this civil law suit. Mr.
Parkinso.i asked whether the United States Attorney would have any objection
to him (Mr. Parkinson) sitting in on interviews by the FBI of Committee To
Pi,eelect the President employees, in view of the pending law suit against the
Committee To Reelect the President. U.S. attorney Titus called assistant U.S.
attorney Silbert, who was actually handling the criminal case involving the Water-
gate breakin, and after thinking Mr. Parkinson's request over, ISIr. Silbert said
lie would not object as long as the Committee To Releect the President attorney
would not interfere with the interviews. Assistant U.S. attorney Silbert subse-
quently telephonically contacted the Washington field office and advised of this
•decision.
Senator Byrd. Is the committee to understand that all of the CRP
personnel who requested subsequent inter\de^^'s were subsequently
interviewed?
Mr. Gray. That is my testimony under oath, Senator B3Td.
Senator Byrd. What about CRP personnel ^vho did not complain
specifically and ask for niter \'ie^^■s? Were they reinterviewed privately
anyway?
Mr. Gray. No, sir; they were not, to the best of my recollection. I
don't know of anyone we went to and said, "Hey, ^\"ould you like to
be intcTA-iewed? We will do it."
Senator Byrd. Why not?
Mr. Gray. That suggestion never came up, and I never thought of
it, to be honest with you.
Senator Byrd. If some CRP employees thought they were intimi-
dated and thought they would like to be interrogated further, why not
inquire of the remainder as to whether or not they were interested
Mr. Gray. It is not a normal investigative procedure to go back and
do that.
Senator Byrd. The Watergate is not a normal case.
Mr. Gray. I know it is not a normal case.
Senator Byrd. Were there any leinterviews with White House
personnel privately and without Mr. Dean's knowledge?
Mr. Gray. I do not believe so, and I believe I have testified to that
faci..
Senator Byrd. Let us suppose that some White House personnel
•had requested to be reinterviewed privately without Mr. Dean being
present; what then would be your response?
Mr. Gray. He would be interviewed.
Senator Byrd. If Mr. Dean asked you who these people were or
for copies of the FD-302 reports on such reinterviews, then what?
338
Mr. Gray. That White House person would be mter\^ewed.
Senator Byrd. Had Mr. Dean ever called for reports for the Presi-
dent of the investigation, any reports in any way?
Mr. Gray. No; he has never asked me that question.
Senator Byrd. Bearing on the Watergate investigation?
Mr. Gray. I want to be sure I am understanding your question.
Has he called me at the President's request and said, Did any
White House people request you to inter\'iew them i)rivately? Is that
the question?
Senator Byrd. No; that is not the question. I am son-y. You mis-
understand me.
How would you handle the situation if Mr. Dean told you he was
calling for reports for the President?
Mr. Gray. What type of reports?
Senator Byrd. Any type of reports dealing with the Watergate
investigation.
Mr. Gray. Well, I have already testified that when he called ^^•ith
regard to an LHM, a memorandum, I provided that through the
Attorney General. I believe the Attorney General defivered it to him.
Then I have already testified for the record that when he called \vith
regard to looking at the FD-302's and the teletypes, I provided those.
I provided, as I testified earher, 82 such repor s, and I testified yester-
day as to what a report consists of, an administrative page, a cover
page, a s3mopsis, and FD-302's, and there may be one FD-302 in a
report or six or four.
Senator Byrd. Suppose that you had indications from those who
were inter\dewed that they would like to be subsequently interviewed ;
would you then have supphed Mr. Dean with FD-302 reports of the
subsequent interviews?
Mr. Gray. I think I probably would have. It may have even ap-
peared in this case, but I am not sure. I will have to check the record
on that.
(Mr. Gray subsequently submitted the following document for the
record:)
Mr. Gray. After checking, I find that the reports containing the reinterviev.'^s of
these people were included in the reports I furnished to Mr. Dean.
Senator Byrd. Are there any FBI investigative reports in connec-
tion with the Watergate case that have been wdthheld from the White
House?
]Mr. Gray. Yes, sir; because I only submitted those that I actually
had read myself and which are contained in my own safe. Those that
I supplied are 82 in number. There were 186 such reports com])iled.
Senator Byrd. I believe you indicated that you would supply the
committee with those 82 reports, did j^ou not?
Mr. Gray. I told the committee that I would supply the committee
W'ith the entire file in the custody jf two special agents of the Federal
Bureau of Investigation, to sit there and answ er any question that any
member wanted, and those 82 reports would be included in the 186.
Senator Byrd. Can you ad\'ise us as to the working relationship
between Mr. Dean as legal counsel to the President and Mr. Colson
during the time you weie conducting the Watergate investigation?
Mr. Gray. No, sir; I have no knowledge whatsoever of that rela-
tionship and very few of those relationships at the White House.
339
Senator Byrd. In the July 21 memorandum, it is indicated that
these sources — I assume that this i*^ referring to persons affihated with
the Committee To Reelect the President — further ad\ase that all
committee people subpenaed before the Federal grand jury were sub-
sec[uently debriefed by attorneys as to what occurred at the Federal
grand jury hearing.
Did the FBI pursue this further?
Mr. Gray. No, sir; no reason for us to pursue it, because secrecy
is in the minutes of the Federal grand jury, and a witness before the
Federal grand jury can discuss his or her testimony almost at will.
Senator Byrd. Can you indicate what committee people were so
debriefed by
Mr. Gray. No, sir; I did not know. I did not check on them to see.
A lot of people don't talk about their Federal grand jury testimony,
and we don't check on them.
Senator Byrd. As you will recall, Mr. Gray, after the conclusion
of the hearings on the nomination of Attorney General Kleindienst,
this committee referred the entire transcript of the hearings over to the
Justice Department so that an investigation could be made of possible
perjury. Can you tell the committee the status of that investigation?
Mr. Gray. I do not believe that matter has been referred to the
Federal Bureau of Investigation, but I will have to check that, Senator
Byrd.
Senator Byrd. Do you know what has held up the matter for so
long?
Mr. Gray. No, sir; I will have to check into that. I don't know.
Senator Byrd. What has the FBI's role been in the matter?
Mr. Gray. In which matter, sir?
Senator Byrd. The matter I just inquired about.
Mr. Gray. The ITT itself, and at what time? When v.e began
way back when it was an antitrust investigation, the Federal Bureau
of Investigation would have been looking at
Senator Byrd. I am talking about the investigation that was made
with respect to possible perjury. What has been the role of the FBI?
Mr. Gray. I don't know. I will have to check and see whether or
not this has been referred to us.
Senator Byrd. You cannot at this point state whether or not the^
FBI has been actively pursuing that matter?
Mr. Gray. Well, I can't state as a matter of record, but I am being
told it is. I would rather check for myself and give you^the results of
what I find.
Senator Byrd. You have been told it is?
Mr. Gray. Yes, I have been told, but I can't state, as a matter of"
fact, myself, that it is.
Senator Byrd. Who is in charge of this investigation?
Mr. Gray. I don't know.
Senator Byrd. Can you tell us anything about the perjury investi-
gation?
Mr. Gray. No, other than I know it had been referred to the De-
partment and is being considered in the Criminal Division. It is not
my memory that it had been referred to us, but I have been told that
it has been referred to us. I will have to check for you and supply that
for the record, Senator Byrd.
340
(Mr. Gray subsequently submitted the following document for the
record :)
Mr. Gray. I have checked, Senator Byrd, and have learned that bj^ memo-
randum dated 12/.'V72, Deputy Attorney General Erickson requested that the
FBI interview Mrs. Dita Beard and a number of officials and emi^loyees of Inter-
national Telephone and Telegraph (ITT) to develop facts for the Department's
consideration of a possible Perjury violation involving conflicting testimony at
the hearings of this Committee which was inquiring into the ITT Hartford Fire
Insurance merger. The memorandum from Mr. Erickson also requested that we
interview several of the same people concerning a possible Obstruction of Justice
growing out of an inquiry between August 1971 and October 1972, conducted by
the Securities and Exchange Commission looking into alleged "insider" trading
of ITT stock bv corporate officials The Obstruction of Justice primarily involved
alleged destruction of ITT files and alleged withholding of other documentary
material from the Securities and Exchange Commission which had subpoenaed
them. Our investigation is virtually completed and four reports have been fur-
nished to the Department. We have about four more interviews to conduct but
two of these people are out of the United States at this time.
Senator Byrd, Do you see any reason to disqualify yourself from
the Bureau's handling of that matter?
Mr. Gray. No, sir; no more than I saw any reason to "disqualify"
myself from the Watergate, except for the comment that I made one
day to the effect that this is a beautiful thing to have thrown in your
lap Avith only 30 days
Senator Byrd. Except that jou were involved in deciding what
information would be supplied b}^ the Justice Department to the
committee •
Mr. Gray. I would respectfully differ with you on that. The
involvement I had was one of making decisions with regard to docu-
ments that were to be sent over here, and meeting with the people
of the Antitrust Division to reach those determinations, and discussing
with the people in the Civil Rights Division the matter of making
those determinations.
Senator Byrd. You don't feel that that activity in any way should
disqualif}^ you from the handling of this matter, then?
^Ir. CjRAY. I don't see hov.^ it could. Those were ministerial in
nature. I wasn't making any polic}'^ decisions as such.
You could say I was by interpreting the rules and regulations of
the Department of Justice, by conferring -svith the Assistant Attorney
General of the Antitrust Division, of the Civil Rights Division, and
b}- signing the letters that I signed to the committee and b}^ discussing
this A\ath some committee staff members.
But the onl}^ thing I knew about ITT is what I learned about it
when these hearings began and when I worked with a gi'oup of
attorneys in the Department of Justice preparing issues and answers
papers, and dealing with the matter of submitting correspondence
and records requested by the committee.
Senator Byrd. You say that the Dita Beard memorandum was
made available to Mr. John Dean by you?
]Mr. Gray. That is correct, sir.
Senator Byrd. Would you provide the date on which you made the
memorandum available to Mr. Dean?
"Sir. Gray. I cannot. And after looking at my records and trying
to summarize this as to how and when it happened, it had to occur
sometime between the 10th of March and the 17th of March, some-
where in that period of time.
341
Senator Byrd. How was the Dita Beard memorandum transmitted
back to you, by whom?
Mr. Gray. I beHeve that Inspector Bowers brought it over first,
but I am not even certain of that. I believe that is the way it came
over first.
Senator Byrd. Would you indicate when specifically it was deliv-
ered back and by Avdiom?
Mr. Gray. As close as we can reconstruct it, I will do that, because
I have no written records on that at all.
(Mr. Gray subsequently submitted the following document for
the record :)
]Mi. Gray. I have tried to recollect when the Dita Beard memorandum v\-as
delivered back to me from Mr. Dean and by whom the delivery was made, and
I find that 1 am miable to do so.
Senator Byrd. Would you provide us with any covering letter, or
transmission letter, or notes, or buck slips that are sent along?
Mr. Gray. There weren't any. I know that.
Senator Byrd. Either to ^Mr. Dean or back to you?
Mr. Gray. No, sir.
Senator Byrd. Once you got the memorandum back, what did you
do A\-ith it?
Mr. Gray. I believe I returned it to the committee. That is the
best of my recollection.
Senator Byrd. Would you check that, please?
yir. Gray. Yes, sir.
Senator Byrd. AVliom did you give it to? You stated in response to a
question by Senator Tunney that "the document was returned to me
in exactly the same form as I had delivered it."
Does this mean there were no stains, cuts, mutilations of any nature
resulting from the scientific methods that might have been used to
test the authenticity of the memorandum?
Mr. Gray. My instructions as I remember them — and as I can
reconstruct it in my own mind — ^we were restricted in the tests we
could make, because we couldn't stain the document or alter it in any
way. It is my recollection that those instructions were carried out,
that the FBI did not subject it to the standard chemical tests that
discolor it.
Senator Byrd. Did you personally examine the document?
Mr. Gray. No, I did not examine it.
Senator By^rd. Am I correct, in understanding your testimony, it
is that you don't have the faintest idea of how the Dita Beard mem-
oranda might have gotten into the hands of the ITT or its experts?
Mr. Gray. My testimony is I do not know how it got into the
hands of the ITT or its experts, nor do I reall}" know as a fact so I
could testify under oath that this did indeed occur.
Senator Byrd. Have you made any inquuy mto this?
Mr. Gray. No, I have not. Senator.
Senator Byrd. Who sent the memo back to 3'ou, Mr. Gray, from
the White House?
]Mr. Gray\ I believe that came direct to me from Mr. Dean.
Senator Byrd. Who brought it to you?
Mr. Gray. I don't recall.
Senator Byrd. Has any inquiry been made as to how the Beard
memorandum might have gotten into the hands of the ITT?
342
Mr. Gray. No, sir; no such inquiry was directed.
Senator Byrd. You stated, at page 176, and again today that j^ou
•don't know whether or not ITT had that document. You were present
throughout the Kleindienst hearings, weren't you?
Mr. Gray. That is correct sir, but I don't know, as a matter of
fact, and I also said that I would have to review that ITT testimony.
Senator Byrd. Were you unaware of the fact that ITT's general
-counsel, Mr. Abell, testified that ITT had the document and had it
examined, while the hearings were going on, by its own experts?
Mr. Gray. I did not know that; no, sir.
Senator Byrd. Would you take a look at page 804 of the printed
record of the Kleindienst hearings and
Mr. Gray. I will. Senator. I said I wanted to look into that. If we
are going into the ITT matter, I will have to prepare on that, because
I have clone no preparation whatsoever on the ITT matter.
Senator Byrd. Would you indicate why, in view of Mr. Abell's
testimony that ITT did have the document, that you never made
any inquiry about this as to how it got into the hands of ITT or its
-experts?
Mr. Gray. I have stated earlier, that if it did, and now Mr. Abell
testified to that — and I will read page 804 of that record — I have
already stated that one of the objectives of this committee was to
determine the authenticity of that document; and this indeed was
another method of determining the authenticity. I do not see that
it was in violation of what the committee's ultimate objective was,
that there was any violation of law that would be subject to the
investigative jurisdiction of the Federal Bureau of Investigation.
Senator Byrd. Do you have any reason to believe that Mr. Abell
or any other ITT people may not have told the truth about this?
Mr. Gray. No, sir; I don't. I just don't remember the testimony;
you know, it is just that kind of straightforward statement from
me. I don't remember the testimony.
Senator Byrd, Has this question been explored in perjury mvesti-
'gations?
Mr. Gray. I don't know, because I don't know what is going on in
the perjurv investigation. I told you that I would look into it.
Senator Byrd Was Mr. Dean, in fact, provided with the FD-302's
of those persons from CRP v.ho subsequently asked to be interviewed
privately and in confidence?
Mr. Gray. I believe this will turn out to be the case. I will have to
'check into those 82 reports that I have, and W' ere furnished to him, as
.to whether or not this is true.
Senator Byrd. Why would he be provided with these?
Mr. Gray. He is a part of the chain of command in which I fit.
Senator Byrd. Did he specificaliy request these foUowup FD-302's?
Mr. Gray. Not of these people by name; no, sir.
Senator Byrd. Did he request specifically — did he ask to be provided
with the FD-302's of those persons from CRP who asked to be re-
interviewed but privately and confidentially?
Air. Gray. He did not. He did not know about it. He couldn't
have asked.
Senator Byrd. Did I understand you to say that he, nevertheless,
in all likelihood was provided with those?
343
]Mr. Gray. That is what I beheve to be the case, but I will have
to check. He did not ask for them by name because he didn't know
about them.
Senator Byrd. Why would the FBI provide him vdth this informa-
tion if he didn't ask for it?
Mr. Gray. He asked for the FD-302's and teletypes in order to
assist him in conducting his inquiry for the President of the United
States. I submitted to him those that I had gone over and I believe
these three were in the ones that I had gone over.
Senator Byrd. Would you verify this for the record?
Mr. Gray. Oh, yes, I will,
(Mr. Gray subsequently submitted the following document for the
record :)
Mr. Gray. As the record indicates above, I have previously furnished an insert
for the record to clarify this.
Senator Byrd. Thank you, Mr. Chairman.
I have finished my questioning for now.
The Chairman. We will recess to 2:30.
(Whereapon, at 12:53 p.m., recessed until 2:30 p.m.)
afternoon session
The Chairman. Let us have order.
Senator Gurney, do you have any questions?
Senator Gurney. Yes, Mr. Chairman.
In the quei^tioning this morning, Mr. Gray, I think there \\'ere
two things that again were attempted to be brought out.
One regarded allegations that these speeches you made were of a
political nature and designed to help the reelection of President Nixon.
The other line of questioning was directed to a supposed lack of
thoroughness of the FBI in the Watergate investigation.
I ^\'ould jui t like to go over those to ask some questions myself and
perhaps put them in a little better perspective.
As far as the speeches were concerned, jou mil recall that you gave
lis copies of all your speeches, and also on another memorandum, a
list of the speeches and the dates on which they a\ ere made.
tirst of all, my recollection is that you termed these speeches as
patriotic in nature and perhai^s as a way to communicate as head of
the FBI to the American public in general. Is that a correct under-
standing of ^^■hy you gave the speeches?
TESTIMONY OF LOUIS PATRICK GRAY III— Resumed
Mr. Gray. Yes, that is basically it. I felt this w^as the first time I
had the public forum. I also felt that as I became more closely
acquainted with the work of the men and women of the Federal Bureau
of Investigation the telling of their story needed to be done, even
though they had a tremendous majority of support from the Arnerican
people. I still felt some of those criticizing us were criticizing us
honestly but often basicall}-^ from a paucity of information, because of
some of our own policies in the past.
Senator Gurney. Well, that was my understanding as to why the
speeches were given.
344
I think the otlicr important thing is when they were given and in
what quantity. Those of us engaged in the first line of politics know
one conducts vigorous campaigning generally 2 months or 6 weeks
before election. In general elections it is in September and October.
As I review these speeches and the list you gave us as to their
dates, you began to dehver speeches almost immediately after you
became Acting Director of the FBI; isn't that correct?
Mr. Gray. Yes; that is correct, Senator.
Senator Gurney. When were you appointed as Acting Director?
Mr. Gray. I learned on the afternoon of May 3, that I was to be
named Acting Director, May 3, 1972.
Senator Gurney. The first speech I see here was given May 17,
before the Thomas More Society in Washington; isn't that correct?
Mr. Gray. That is correct, sir.
Senator Gurney. And then there was another one given also in
May, in Mississippi.
Mr. Gray. That is correct, sir.
Senator Gurney. And then j^ou give five in June and five in July,
two in August. Of course the political conventions weren't even over
until after August. Then you gave six in September, six in October,
and then five others after election day in November; isn't that correct?
Mr. Gray. That is correct, sir. I had others scheduled, too, further
on into the year be3^ond that time.
Senatur Gurney. I noticed j^ou didn't give any in December. I
suppose that was during the period of your illness; is that correct?
Mr. Gray. Yes, sir, from November 19 on. I was scheduled to
speak November 19 to the Holy Name Society in Boston, but I
couldn't give that speech. From November 19, until I came back to
full duty I didn't give any speeches.
Senator Gurney. So as I review this record of speech making, it
has little to do ^^ith any political campaign. It was a speeciunaking
process that began almost immediately after you became Acting
Director and continued until you were ill, was interrupted during
that period of time, and then j^ou resumed again and gave two in
January and two in February; isn't that correct?
Mr. Gray. That is correct, sir.
Senator Gurney. It seems to me you reall}^ have to have a high
imagination to come up with any pohtical significance to that,
especially after you read the speeches themselves, which as I recall
don't mention the President or the candidate on the other side or
either of the pohtical parties.
Mr. Gray. I think in one speech in Spokane I commented on drug
abuse being designated as priority No. 1 by the President, but that
is all the recollection I have that I mentioned any candidates.
Senator Gurney. Now, I would like to get into this business
about what kind of an investigation the FBI conducted into the
Watergate. I think we had best start with the beginning.
Is it not correct that you, as Director of the FBI, started this
investigation on your own before anybody said anj^thing to you
about it at all?
Mr. Gray. Yes, sir; that is correct. One of the first cpiestions to
arise, of course, was one of jurisdiction. As you know. Senator, the
case was reported as a burglary and, in fact, our Washington field
345
oiBce originally named a biirglaiy specialist as the case agent, the
agent in charge of the case. Then the next report was that there were
bombs involved, there was a bomb involved, and that was that
smoke detector. Then we got the electronic device and there was no
question in our minds this was an IOC, an interception of conmiu-
nications case, and Ave did assume jurisdiction right then and there.
It is true that later on the Department of Justice — in the middle
of that Saturday, I believe it was about midday — informed us that
we were to have full jurisdiction of the mvestigation. But we had
begun prior to that.
Senator Gurney. So even though this involved alleged, in the
beginning, activity against the Democratic National Committee ofBce,
you, as head of the FBI, appointed by President Nixon, began this
investigation on your own before anybod}^ said anything about it?
Mr. Gray. Yes, sir, I began it on my own but at that time, Senator
Gurney, I only knew tliis mcident had occurred. I didn't know the
names of the people. It wasn't until 3:45 Pacific da3dight time that
Saturday that I knew one of the individuals involved was identified
as a man connected with the Committee to Re-Elect the President.
But all that did, as far as I was concerned, was kick up the heat a
little bit more to push that investigation even more aggressively^
Senator Gurney. And the Department under which you serve, the
Department of Justice, also in this present administration, confirmed
your proceeding with the investigation and gave you a full green
light; isn't that correct?
"Mr. Gray. That is absolutely correct. The Attorney General was
advised of my decision to conduct a full court investigation and with-
hold dissemination, to hold this very closely until we saw what we
had. He did concur in both of those decisions. Those were recom-
mendations to him.
Senator Gurney. We have had a lot of discussion here about
White House personnel bemg interrogated and the fact that an attorne}'-
was around and all that sort of thing. That amuses me, too, in view of
the fact that this committee is composed of attorneys. But at any rate,
how many people did you interview \vithin the White House in the
investigation?
Mr. Gray. Total number of people? There were quite a few of
them, sir. We have submitted the list and I haven't really counted
them off.
There were 14, and some of them were interviewed more than once,
sir. Then we also interviewed 0MB people and some administrative
people in the White House A\ith regard to records, and there were five
of those, sir.
Senator Gurney. Did you investigate or interview any and all
people in the White House that your leads in any way connected with
the Watergate or might be connected with the Watergate?
Mr. Gray. Yes, sir; I did not in any way hamper any Wliite House
lead and I would not have done it. It would have been an absolute
disaster even if I had been so inclined, which I was not. The FBI,
Senator Gurney, would have thrown me right out of there. They are
just that kind of people. They are not going to take that kind of blatant
political direction.
346
Senator Gurney. You even interviewed, as I understand it, John
EhrJichman, mIio is represented by the media as one of the two right-
hand men of the President, did vou not?
Mr. Gray. Yes, sir, we did.
Senator Gurney. Was there any lack of cooperation at any time
during these White House interviews on the part of anybody in the
White House from the President on down?
Mr. Gray. I cannot say from the President on do>ATi, because the
President, you know, made only his public statements. I didn't talk to
the President on this. I don't really know
Senator Gurney. Within your knowledge.
Mr. Gray (continuing). Other than what he said.
I know that in the beginning everybody was naturally jumpy about
this sort of thing. I know that in the beginning there was a feeling on
the part of our agents that we were not getting complete cooperation
and complete candor. Certainly this feeling was expressed. I feel that
as we went along we were able to overcome this. We were able to
conduct interviews that were meaningful, and the mosaic and evi-
dentiary pattern was developed by thorough investigation. Indeed
from the information I have from the Federal grand jury which is
limited, and the information from the trial which is complete, there was
in no way any difference between that pattern and the grand jury or
the trial.
Senator Gurney. No one ever said to j^ou at any time as far as the
Wliite House personnel are concerned that 3^ou can't interview Mr. X
or you shouldn't interview Mr. Y?
Mr. Gray. Absolutely not, sir; I state that under oath udthout fear
of contradiction.
Senator Gurney. Now, there were, of course, one or two indications
from your memorandum that in the Committee to Re-Elect there was
less than full cooperation. But let us find out the extent of that
investigation, too. How many people did you interview over there?
Mr. Gray. Once again. Senator Gurney, quite a few people over
there that we interviewed — 58, Senator Gurney.
Senator Gurney. Again, did you interview all people that seemed
to have any interest or connection with this W^atergate affair?
Mr. Gray. Yes, sir, everyone that we thought we should interview
as the result of a development of a lead we did interview.
Senator Gurney. And any evidence of any one or two instances of
lack of cooperation did not deter you in any respect in your conducting
a full investigation as far as the Committee to Re-Elect?
Mr. Gray. No, sir.
Senator Gurney. Now I understand that you interviewed some
people over on the Democratic side, Mr. Larry"^ O'Brien, for example.
Did the FBI interview him?
_ Mr. Gray. Yes, sir, we tried on seven different occasions to inter-
view Mr. O'Brien and we interviewed him on the seven occasions, I
believe. He was traveling a considerable portion of that time.
Senator Gurney. Did he have an attorney present vv-ith him when
you interviewed him?
Mr. Gray. Yes, he did, sir.
Senator Gurney. Did a'^ou interview any others on the Democratic
National Committee?
347
Mr. Gray. Yes, sir, we did. We interviewed 61, sir.
Senator Gurney. Were their attorney's present when vou inter-
viewed them?
Mr. Gray. Yes, sir.
Senator Gurney. In everv case?
Mr. Gray. Yes, sir.
Senator Gurney. There has been a lot of comment about Mr. Dean
and his activities, particularly when he was present during the inves-
tigation of the White House people. I expect there probably will be
more questions about that.
It occurs to me that it was fairly normal procedure if the President
had instructed Mr. Dean to investigate the involvement of smj White
House personnel with the Watergate that he would want as much
firsthand knowledge as he could get. So there is nothing unusual about
Mr. Dean being present when White House witnesses or personnel are
interrogated, is there?
Mr. Gray. I didn't think so, although I testified our preference
would have been otheiwise from an investigative standpoint. We must
keep that clear. But tliis man is the counsel to the President of the
United States. He has an attorney-client relationship with the Presi-
dent of the United States and he had a specific directive from the
President of the United States to perform a function. We M^ere cer-
tainly in no position to resist. Had a similar situation occurred in prior
administrations, going however far back, I cannot believe Mr. Hoover
would have resisted either because of the fact the man is counsel to the
President and he has that attorne^^-client relationship with the Presi-
dent which is a privileged relationship under our Constitution.
Senator Gurney. Isn't there another reason why he v/ould want to
be present? Certainly it occurs to me that any investigator or lawyer
charged with an investigation would want to be present when a
witness testified or was interrogated so that he could not on\j hear the
answers but also to get an impression of the demeanor of the witness;
isn't this a fair thing to s&j?
Mr. Gray. I would certainly think that would be one of his reasons,
although he didn't spell them out to me. Senator Gurney.
Senator Gurney. It would seem most unusual to me if he were
charged with that sort of a job, for him not to be present when these
people were interrogated.
Mr. Gray. Well, I don't feel so either because he had a very, very
tough question on his hands, and I know from the initial telephone
conversations I had with him that he was at "sixes and sevens" and
didn't have any idea about what w^as going on.
Senator Gurney. Did he in any way attempt to interfere or throw
any roadblocks into the FBI investigation of people down at the
Wiiite House?
Mr. Gray. No, sir; in no way. My agents tell me he asked no ques-
tions or interfered in no way with their interviews.
Senator Gurney. Let us turn to Mr. Segretti for a moment. There
has been a lot of conversation about him. How many times did the
FBI interview Mr. Segretti?
Mr. Gray. I believe, sir, it v/as on the 22d of June and the 26th of
June; and then, I think, on the 30th of June, Senator, we contacted
him to get an identification on a picture.
348
I am sorry, sir, may I correct that? ]\Iy executive assistant reminds
me i t was the 26 th and 2 8 th of June .
Senator Gurney. Did you find in these interviews tliat he had any
connection with the Watergate affair?
Mr. Gray. No, sir; not as to the intercepted communications at
alL He was not involved in the criminal investigation. We saw nothing
in those interviews that indicated his involvement.
Senator Gurney. And you were investigating the criminal charges
or activities surrounding this bugging and surveillance of the Demo-
cratic National Headciuarters; isn't that right?
Mr. Gray. That is correct, sir. We made all of this information
available, of course, either to the U.S. attorney or the assistant U.S.
attorney, and there was never any indication from either the assistant
U.S. attorney or U.S. attorney that there was any likelihood of
prosecution of Mr. Segretti.
Senator Gurney. And nowhere within the perimeters of your
investigation were you directed to look into the other political activi-
ties of Mr. Segretti or anybody else in connection with the election of
1972?
Mr. Gray. No, sir; we weren't.
Senator Gurney. In fact, it would have been highly improper had
you done so, wouldn't it?
Mr. Gray. It would not have been in accordance with Department
of Justice policy. If we get preliminary information from an interview
with. Segretti and if there are witnesses — which we didn't have — and
get information from Segretti which later turns out — but at that
time, no, we did not have anything to go on. We had no reason for
doing anything, and the Department of Justice did not order us to
to do anything.
Senator Gurney. As I understand, in connection with that last
reply, the Department of Justice didn't audit your hiterviews. Your
interviews of Segretti were turned over to the U.S. attorneys, were
they not?
Mr. Gray. Yes. Ever}^ one of our reports. Initially, w^e held every-
thing tightly, and it was then a ciuestion of the case agents and the
assistant U.S. attorneys working together. Then, gradually, Ave began
to feed our the reports of our investigation to them so that they had
the written material. But this was a fast-breaking investigation, and,
as Senator Hruska pointed out this morning, everything was immediate
and agents were poured into it right away, and reports were coming
in awfully quickly.
Senator Gurney. But if there was any criminal activity on Segretti's
part or perhaps a hint that there might have been, a U.S. attorney
would have either proceeded by asking you for further investigation,
or, of course, if the facts warranted it, charges of criminal prosecution
would have been placed against him; isn't that correct?
Mr. Gray. That is correct.
Senator Gurney. In other words, you had done your job when
you turned over the information and materials that you had obtained,
to the U.S. attorne}^?
Mv. Gray. That is correct.
Senator Gurney. As I understand, we really don't know whether
Mr. Segretti ever saw these FBI interviews on him. All we know, of
349
course, is that there was a newspaper story about it. But suppose he
had seen it. Is there any crime involved here?
Mr. Gray. Senator, I am not really in a position to make the final
judgment on whether or not a violation of law has occurred. I testified
that if this alleged act occurred as rei)orted in the newspaper, I
think I said I would classify it as a grievous and most serious breach
of trust. But not as a ^'iolation of law within the laws of the United
States, within the investigative jurisdiction of the FBI.
Senator Gurney. And on that point of serious breach of trust, my
recollection of yoiu* testimony is that as soon as 3'ou read this or
heard about it, you called up Mr. Dean right awa}'' and asked him if
this had been done; isn't that correct?
Mr. Gray. That is correct, because, 3^ou know, I had given these
to him, and the natural thought, the natural reaction on m}^ part,
has got to be that this is what happened if it happened.
Senator Gurney. Then there has been some either plain criticism
or implied criticism here that you should have conducted a more
thorough investigation of Mr. Dean and this memorandum to Mr.
Segretti. But it is my imipression from hearing your answer that when
you had this exchange with Dean that you thought he told you that
"he didn't show these to anybody' , and within the i)erimeters of that
answer 3-ou got the impression that he didn't know am'-thing about
how this happened either; isn't that correct?
Mr. Gray. Well, that inference could be drawn. Of course, I may
have gone through that mental process in deciding to go no further,
but I was satisfied with his answer when he said that he did not do this
and did not even have these with him in Miami.
Senator Gurney. And I suppose 3'ou would have assumed that if he
knew, if anybody else in his office or out of his office, for that matter,
had gotten hold of these things and showed them to Segretti, he would
have told you?
Mr. Gray. He would have. I didn't say it was breach of trust to me.
I said it was a breach of trust to the President. I said, "you are counsel
to the President, with an attorney-client relationship with him; now,
did this occur?" and. I used some profanity- there because I was angry
Avhen I read that story.
Senator Gurney. There have also been inferences here that per-
haps you should have tried to go around these cases where the witness
retpicsted an attorne}' present. That is true of some of the Com-
mittee To Reelect the President people; and then of course, there is
the Dean business, too, although that is not the turning point because
he was acting for the President. But what is the policy of the FBI if
a prospective interviewee says he wants an attorney present; do 3-ou
lienor that request?
Mr. Gray. Yes, sir; we either honor that request or we don't con-
duct the interview, and we don't go around the back door. It is a
matter, reall3', of an ethical consideration involved there. You have an
emi)lo3^er who sa3's you can interview my emplo3'ee with counsel
])resent. This is not the first time this has happened. It has happened
in other cases.
Senator Gurney. One final c[uestion of Segretti. Wliat if he had
come to the FBI after vou had interviewed him and said. "I would
like to see a cop3' of nn- interview." What would the FBI have done?
350
Mr. Gray. The very strong probability is that we would have
consulted immediately with the U.S. attorney, and, very likely, he
would have gotten his FD-302 to look at.
Senator Gurney. Those are the customary procedures in these
cases?
Mr. Gray. That is, sir. He was not charged with an offense. He
was not a suspect or a subject, and there had been no formal referral
to the U.S. attome}^ against him. But our normal practice would have
been to check with the U.S. attorney and let him take a look at them.
Senator Gurney. That is all I have for the moment, Mr. Chairman.
Senator Tunney. Thank you, Mr. Chairman.
Mr. Gray, I would like to pursue a few questions with respect to
Mr. Dean.
Mr. Dean was given the Dita Beard memo which ended up in the
hands of the ITT. As I understand it, 3^ou did not pursue Mr. Dean's
involvement in that particular case.
Mr. Dean was given the FBI file on the Segretti interview, and
there were i)ress reports — and we don't know whether this in fact
ha])pened — that Segretti was briefed for the grand jury inquiry prior
to his appearance on the basis of his file. You did speak to Mr. Dean
about his involvement in this, and he denied it. As I understand it,
that is as far as you went.
We know that Dean sat in on the interviews of White House jier-
sonnel at his oa\ti request, and we know that Mr. Dean was sent the
interviews of 82 people, including those people interviewed, the CRP
people, who did not want counsel present.
As I understand it, Mr. Dean directed the confiscation of the material
in Mr. Hunt's safe and that he kept the contents for api)roximately 1
week and then tm^ned the materia^ over to the FBI on June 26.
As I see it, Mr. Dean was omnipresent in this total investigation. I
would like to ask you how many of the White House witnesses that
the FBI talked to had already been talked to by Mr. Dean?
Mr. Gray. That I don't know, sir.
Senator Tunney. Wouldn't that be an appropriate line of inquiry
in such an investigation, considering the fact that. No. 1, here was a
situation where Mr. Dean had directed the confiscation of Mr. Hunt's
safe?
I would like to pursue that. Is that appropriate in this type of situa-
tion, where the FBI has gotten into an investigation, starting on the
17th of June, to have someone at the Wliite House confiscate a safe
that was directly relevant to the investigation, particularh" inasmuch
as the White House knew, as I understand it, on June 17 that Mr.
Hunt was probably involved?
Mr. Gray. Well, certainly late in the evening of the 17th, Mr.
Butterfield was talked to, and we told him we thought Mr. Hunt was
involved in this. But as that week passed, we did not have, as I
testified this morning — and I asked all these questions — we did not
have sufficient information to request a search warrant Avith the
specificity and jiarticularity required in order to get a search warrant
for the Wliite House. That thought did not enter the minds of the case
agents working the case. It did not come up. It did come up at a later
date, and these documents were delivered to us by Mr. Dean.
351
Senator Tunney. Were you surprised that the safe had been opened
up and that the safe had not been turned over to the FBI?
Mr. Gray. No, I would have been surprised had it not been, because
I didn't know what kind of papers v\'ere in there. In fact, I was
suri)rised to find out what kind of things were turned over to us.
Senator Tunney. Wouldn't it have been appropriate under such
circumstances, where on June 17 the Wliite House was notified that
Mr. Hunt was under investigation, that a safe in his office would be
turned over to the FBI which had an ongoing investigatioD i*
Mr. Gr\y. I think probably the first consideration woiiJd be the
President's counsel, and the President's counsel has said himself he
would like to determine what might be there. I see absolutely nothing
wTong with it. That is the Wliite House, and that is the attorney-client
privilege that exists there, and that is the man who is charged with an
investigation for the President.
Senator Tunney. Was Mr. Dean Mr. Hunt's counsel, too?
Mr. Gray. No, he wasn't Mr. Hunt's counsel that I know of. Now,
I don't know. I don't think he was.
Senator Tunney. The attorney-client relationship didn't run be-
tween Mr. Dean and Mr. Hunt?
Mr. Gray. No, between Mr. Dean and the President. Hunt allegedly
had an office there at the White House. The White House records
actually showed, as we checked them, I believe, that this man's last
day of work there was the 29th of March 1972.
Senator Tunney. So it is perfectly appropriate, then, when you
have an ongoing FBI investigation, for a man who serves in an at-
torney-client relationship with the boss of the man who is being in-
vestigated, to go through the files of that man being investigated and
hold the material for 1 week prior to the time it is tiu-ned over?
Mr. Gray. I have no information that Mr. Dean went through those
files. Senator Tunney.
Senator Tunney. Just reading from the answer to the motion to
suppress, which was filed by the Government in opposition to de-
fendant counsel's motion to return the property as suppressed evi-
dence, it states:
On Moaday, June 19, 1972, John W. Dean III, Legal Counsel to the President,
having received information that Hunt, an alleged White House empJo.vee, was
possibly linked to the Watergate break-in, attempted to determine whether Hunt
was in fact employed at the White House. He discovered that Hunt had been
employed as a consultant to work on national security' matters relating to the
Pentagon Papers and international narcotics trafficking, that he had been assigned
an office in the Old Executive Office Building (Room 338), and that he was ro
longer emjiloyed as a consultant. Mr. Dean was anxious to krow whether Hiuit had
complied with established procedures to turn over all White House papers and
files upon termination, particularly because of the sensitive nature of the matters
on which Hunt had been working, and because of Hunt's possible implication in
the Watergate break-in. Accordingl}-, Mr. Dean instructed Bruce Kehrii, staff
secretary to the President, to go to Hunt's former office in the Old Executive Office
Building and to retrieve whatever documents were there. At the time Mr. Dean
issued these orders, he had not yet received any inquiries from law enforcement
officials regarding Hunt.
Mr. Kehrii entered Room 338 of the Old Executive Office Building late in the
afternoon or early evening of June 19. There were no pictures on the walls, the
desk top was clean and the desk drawers contained only office supplies such as
stationery and paper clips. Mr. Kehrii noticed a safe in the office but it was locked
with a combination lock, and the combination was not on file. In order to obtaiu
352
the papers which he was instructed to retrieve, Mr. Kehrii arranged with the
General Services Administration to have its employees move the safe to a storage
area and open it. For security reasons, the safe was opened in the presence of a
Secret Service Agent. Before removing items from the safe, Mr. Kehrii called Mr.
Dean's office, and, in Mr. Dean's absence, Mr. Fred Fielding, Assistant to the
Legal Counsel to the President (Mr. Dean's principal assistant), responded to
the storage area and assisted Mr. Kehrii in removing articles from the safe and
placing them in cartons. Because of the lateness of the hour, these boxes were
moved to Mr. Kehrli's office in the West Wing of the White House where they
would be secure overnight.
On Tuesday, June 20, 1972, Mr. Kehrii instructed that the cartons be removed
from his office and taken to the office of John Dean. Mr. Dean sorted through the
boxes in order to determine whether there was any classified material contained
therein. There were a number of envelopes and file folders stamped with classified
designations which, upon opening, were found in fact to contain classified matter,
most of it relating to the Pentagon Papers. There was also a black attache case
among the material which had been removed from the safe, and Mr. Dean opened
it in order to see whether it too contained classified material. Upon opening the
case, he saw in plain view a large amount of electronic equipment, as well as
written matter, pamphlets and instruction booklets relating to electronic equip-
ment. Mr. Dean placed items such as office supplies in a cardboard box which he
left on the floor in his office, but he placed the classified material and the attache
case in file cabinets where they would be safer. All the material seized from Room
338 of the Old Executive Office Building was subsequentl}^ turned over to the
Federal Bureau of Investigation.
Now, it is clear that the Wliite House knew that the investigation
was going on, and on June 17; this material was taken on the 19tli
and not turned over until the 26th. Mr. Dean had it in his office
for approximateh^ 1 week. My question to you is, is this appropriate?
Would this be something v.hicli the FBI considers to be appropriate
in an investigation of this type?
Mr. Gray. I would say that at the time we didn't even know this
material existed. We didn't know what to ask for.
Senator Tunney. Mr. Dean did?
Mr. Gray. Yes.
Senator Tunney. And Mr. Dean apparently was present on all
the interviews involving White House ])ersonnel. He apparently
received the interviews of 82 jieople. Mr. Dean is the same one who
got the Dita Beard memorandum. He is the same one who received
from you the Segretti file. Didn't all the circumstances lead you to
believe that Mr. Dean perhaps should have been interviewed with
respect to the question as to whether or not he had talked to White
House witnesses prior to the time the FBI talked to them?
Mr. Gray. No, I didn't, because I didn't think that he was sitting
there in the attorney-client privilege position at all. You know,
generally, when you have that attornej^-client privilege position and
you are an attornej?^ working with witnesses, you are obviously
going to talk with them. The knowledge that I had and still have is
that he was sitting there as the counsel to the President in his official
capacity in conducting an inquiry. Also, Senator Tunney, he
may very well have talked to many in the process of his own inquiry.
I don't know that he did or did not. I did not ask him because that
once again goes back to the question, did I consult with him in regard
to the results of his investigation? The answer to that is no, we did
our own, in our own wav, all the way.
Senator Tunney. What was the relationship between Mr. Dean
and Mr. Hunt?
Mr. Gray. That I don't know.
353
Senator Tunney. Wouldn't it be appropriate to the investigation
to know what the rehitionship of Mr. Dean was to Mr. Hunt when
you consider that Mr. Dean was omnipresent during this investigation?
Mr. Gray. He wasn't that omnipresent, reall3^ I don't have that
kind of a feehng about it. He was doing it from his side, from the White
House involvement side. He wasn't doing all the things we were doing.
He was not in our hair constantly. He wasn't that omnipresent as
far as I was concerned at all, Senator Tunne3\ I was frankly surprised
at the materials they turned over to us.
Senator Tunney. Well, they relate to the investigation, of course.
Mr. Gray. He turned over some top-secret material to us. As I
recollect that inventor}^ — I will have to check it. I haven't looked at it
since October, at the time of the motion.
Senator Tunney. The FBI must have all kinds of top-secret
Mr. Gray. I know, but I didn't expect to see — ^I will have to check,
but these were top-secret dispatches with regard to South Vietnam,
as I remember them.
(Mr. Gray subsequently submitted the following document for the
record :)
Mr. Gray. I have checked the records regarding Mr. Hunt's material which
was turned over to us and I find that among the effects are classified dDCuments
relating to the "Pentagon Papers." I have already supplied the committee an
inventory of the items turned over to the FBI.
Senator Tunney. With respect to Mr. Hunt and his relationship to
Mr. Dean, it would seem to me that, inasmuch as Mr. Hunt was one of
the prime suspects in the Watergate case, it might be well to know what
his relationship was with Mr. Dean, as Mr. Dean was very much in-
volved in all aspects of the investigation.
Mr. Gray. As we got into this investigation, we found out about
Mr. Hunt, found out who his relationships were with, but we didn't
in this early week know too much at all about him. We had to develop
it. That is part of the development of the mosaic and evidentiary
pattern.
Senator Tunney. But after you did learn about Mr. Hunt, wouldn't
it have been useful information in this investigation to find out what
Mr. Dean's relationship with \h\ Hunt was?
Mr. Gray. No, because there was no lead that pointed to any kind
of relationship between Mr. Hunt and Mr. Dean.
Senator Tunney. Except for the fact that Mr. Dean did have those
materials from the safe of Mr. Hunt in his office for a week.
Did you request the materials be turned over to the FBI or did he
turn them over of his own volition?
Mr. Gray. My information is he tiu-ned them over. We made no
direct request, because we didn't know they existed during that early
period of time.
Senator Tunney. Wlien were 3'ou first aware of the rumors that not
all of the materials were turned over b,y Mr. Dean?
Mr. Gray. I think this came up in October during the motion, that
motion to suppress, and at that point in time the allegation was made,
as I recollect, A\'ith regard to the pocket notebook and that Hermes
notebook. And as I testified this morning, none of us knew what a
Hermes notebook was and special agents went out into the city of
Washington — I think I am correct-^to seven dift'erent stationery
354
stores trying to find out what a Hermes notebook is. It is some kind of
an English notebook.
_ Senator Tunney. The record you suppHed to the committee of inter-
views of White House people indicated the last time Mr. Dean was
interviewed by the FBI was on July 8, 1972.
Why wasn't he interviewed in October after it became known to you,
Or to the FBI, that there was an allegation that he had not turned over
all the materials in the safe?
Mr. Gray. Once again this was a newspaper story.
Senator Tunney. Right.
Mr. Gray. He was interviewed. He was interviewed in connection
with the response to the motion, because the Government would un-
doubtedl}^ call him, and call Mr. Fielding, and call Mr. Kelirli. He was
interviewed by Assistant U.S. Attorney Silbert in the presence of Assis-
tant Attorney General Henry Petersen in charge of the Criminal Divi-
sion and in the presence of one special agent of the Federal Bureau of
Investigation. All three of those people were there.
Senator Tunney. I see. It wasn't in the record you supplied the
committee.
Mr. Gray. That was a pre-trial preparation and pre-motion type of
thing and it was called by the assistant U.S. attorney. That was part
of our working with them, filUng in any holes or gaps as we did in pre-
paring for trial.
Senator Tunney. And Mr. Dean denied that he had failed
Mr. Gray. Yes, he did.
Senator Kennedy. How did you know he turned all the material
over to you?
Mr. Gray. How do I know, as a matter of fact? I have no way of
stating with positive certainty other than that this question has been
looked into. Senator Kennedj^, on several occasions, and positive
affirmative denials have been made. Also, there is the fact that material
was turned over that was incriminating material, material that you
would naturally in a suspicious frame of mind think would not be
turned over. But I can't sit here in judgment and say I know as a
positive, certain fact that every single piece of paper was turned over.
I can't do that, and I wouldn't do that.
Senator Tunney. Was Mr. Hunt questioned regarding this point?
Did Mr. Hunt say that all the materials were not turned over?
Mr. Gray. The motion paper mentions that. We have made at-
tempts to question those individuals who were indicted and, of course,
they Avon't speak with us.
Senator Tunney. But the motion paper does indicate that not all
the materials were turned over; does it not?
Mr. Gray. I am sorry, sir?
Senator Tunney. Is there any indication on the record that Mr. Hunt
believed that not all the records were turned over to the FBI?
Mr. Gray. I will have to check the records to answer that question
because I just don't know.
Senator Tunney. It would be fairly important to the investigation,
would it not?
Mr. Gray. Yes, but I don't remember those infinite details and I
want to be sure what records you are referring to — if you are talking
about the motion papers or if you are talking about our FD-302's,
Senator Tunney.
355
(Mr. Gray subsequently submitted the following document for the
record .)
Mr. Gray. Senator Tunne.y, I have checked the records and I do not find any
indication that Mr. Hunt told the FBI he thought that all the effects in his office
were not turned over to the FBI. It is a matter of record with the U.S. District
Court for the District of Columbia, however, that on October 11, 1972, Mr. Hunt
swore to an affidavit, which was part of a motion for return of property and to
suppress evidence filed on his behalf with the court. That affidavit of Mr. Hunt's
specifically mentions a "Hermes" notebook and a "name-finder" notebook as
being among the items which were in his effects in Room 338 Old Executive
Office Building. These alleged items were not among the materials which White
House personnel removed from Mr. Hunt's office and which Mr. Dean and Mr.
Fielding turned over to the FBI on June 27, 1972. [The June 27 date was subse-
quentl}' changed to June 26.]
Senator Tunney. Assuming that the allegations were correct —
wherever they came from — I understand that the press was worried
that the FBI
Air. Gray. I would hope that is not true.
Senator Tunney. I would hope it is not true, too.
But assuming it, for the moment, to be true — I am not saying it is —
assuming it is, that would be a pretty important point, would it not,
an address book Avith names of people?
Mr. Gray. It was allegedly a pocket notebook and Hermes note-
book. We found a pocket notebook that had nothing in it. We found
one in an automobile do\^^l in Miami that had nothing in it. When
you are confronted with affirmative and consistent denials, once
again you come to the point of where is the finality. You shake it
and 3^ou shake it and shake it, and at some point in time you have to
say I am just not getting anything.
Senator Tunney. How about Mr. Kehrli? Was he questioned on
that point?
Mr. Gray. I would have to consult the 302.
(Mr. Gray subsequently submitted the follo\ving document for
the record :)
Mr. Gray. Upon checking the record. Senator, I find that Mr. Kehrli was not
questioned on this point by the FBI. However, on January 4, 1973, in pretrial
preparation, Mr. Kehrli along with Mr. Fielding and Mr. Dean, was questioned
by Assistant U.S. Attorney Silbert in the presence of Assistant Attorney
General Petersen of the Criminal Division. A Special Agent of our Wash-
ington Field Office was present at that questioning by Mr. Silbert which took
place in Mr. Petersen's office at the Justice Building.
Senator Tunney. Mr. Kehrli was the one actually brought the
safe over to liis office and removed the papers in the fu-st instance.
Could we have that information? Was he questioned by the FBI
after these allegations were made or the rumors were started that not
all the documents have been turned over to the FBI— and also the
agent of the Secret Service who happened to be present.
Mr. Gray. No; there was no Secret Service — I said the special
agent, I thought.
Senator Tunney. No ; I was talking about the answer to the motion.
Mr. Gray. I see.
Senator Tunney. It indicates a Secret Service agent was present
■with Mr. Kelirli as they removed the items from the safe. I am curious
to know if, after these rumors were started that somehow not all the
documents were turned ov^er by Mr. Dean, Mr. Kehrh was inter-
viewed and if the Secret Service agent was interviewed in addition
to Mr. Dean.
356
ISIr. Gray. I can state, Senator Tunney, that Mr. Dean, Mr.
Kehrli and Mr. Fielding were interviewed by Assistant U.S. Attorney
Silbert in the presence of Assistant Attorney General Henry Petersen
of the Criminal Division and one agent of the Federal Bureau of
Investigation, but I cannot specify with regard to the vSecret Service
agent. I will have to check for you and make an insert for the record.
(Mr. Gray subsequently submitted the following document for
the record:)
After checking, I have been informed that tlie Secret Service agent was not
questioned on this point by Assistant United States Attornej^ Silbert, nor was he
questioned on this point by the FBI. Our files show that among the people we
interviewed relative to the removal of Mr. Hunt's effects from Room 338 in the
Old Executive Office Building was a Secret Service agent who was interviewed on
June 29, 1972. He was present when Mr. Hunt's safe was drilled open on the
evening of June 19, 1972. When the safe was opened and it was seen that some
highly classified material was contained therein, it was immediately closed and
Mr. Kehrli was inft)rmed. Mr. Kehrli took the responsibility- for the contents and
the Secret Service agent was thereafter excused and did not participate in recovery
of the items from the safe.
Senator Tunney. Mr. Gray, during the Watergate investigation
how many times did j^ou personally speak to Mr. Dean?
]Mr. Gray. I don't know the exact number of times, but in the
beginning I know there M^ere quite a few telephone conversations
there; we were trying to get this procedure ironed out.
Senator Tunney. The procedure for interviewing the White House
people?
Mr. Gray. That's right.
Senator Tunney. And the procedure that was worked out was
what?
Mr. Gray. I worked out the procedure with him and told him, and
made no bones about it, that this investigation was going to be
aggressively conducted and that as far as I was concerned we ought
to find out who is involved, regardless of where we had to go, and this
we were going to do. The White House was well aware of this. The}^
made no objections to this. They concurred in it. It was during
conversations along these lines and along the procedural lines that I
finally said — and I want to put this in the context of either my No. 2
man or the Special Agent in Charge of the Washington field office
calling. I believe that Mr. Felt had one telephone call with ]Mr. Dean
on this, then the calls were direct from the Special Agent in Charge
of the Washington field office to Mr. Dean. But I talked with Mr.
Dean cpiite frequenth'. There were a lot of matters that I talked with
him on, but I will be glad, as I said to Senator Byrd this morning, to
check the records and give you the dates. I think we have the times
that I talked to him.
(Mr. Gra}^ subsequently submitted the following document for the
record :)
To the best of my recollection and ujion checking my records, I find that my
contacts with Mr. Dean regarding the Watergate investigation were as follows:
Date Time' Appointments
June 21, 1972 11:30 a.m At my office to discuss procedures re interview of White House personns
June 22, 1972 6:30 p.m Do.
July 28, 1972 . 11:30 a.m At my office to receive investigative reports from me.
Sept. 18, 1972 . 3 p.m At my office to return investigative reports to me.
Oct. 18, 1972 9:30 a.m At my office to discuss leaks re investigation.
357
Date
Time
Telephone calls
June 21, 1972 10a.m__,
Do 5:26 p.m_
June 22, 1972 10:21 a.m.
June 23, 1972 8:24 a.m..
Do 2:53 p.m..
June 26. 1972.
3:13 p.m.
June 27, 1972 9:28 a.m..
June 23, lbi72 10:25 a.m.
Do 4:35 p.m..
June 30, 1972 10:13 a.m.
Do 1:02 p.m..
July 5, 1972 2:58 pm..
Do 3 p.m
July 17, 1972 11:10 a.m.
Julv20, 1972 9:57 a.m..
July 21, 1972 2:44 p.m..
July 23, 1972 10:32 a.m.
Do 11:30 a.m.
Aug. 2, 1972 3:09 p.m..
Aug. 3, 1972 2:54 p.m..
Aug. 4, 1972 10:32 a.m.
Sept. 14,1972 6:25 p.m..
Sept. 19, 1972.... 12:14 p.m.
Sept. 20, 1972 3:51 p.m..
Oct. 12, 1972 3:12 p.m..
Oct. 18, 1972 9:05 a.m..
Jan. 8, 1973 2:59 p.m
Feb. 2, 1973 11:20 a.m.
To Mr. Dean to set up appointment re procedure for interview of White House
personnel.
. To Mr. Dean to discuss his role at interviews and scheduling of interviews through
his office.
. From Mr. Dean to set up appointment for later today.
. From Mr. Dean re rumors of leal<s of FBI information.
. To IVIr. Dean to deny that information re the investigation is being leaked from
FBI.
From Mr. Dean; referred to me at Cincinnati field office; called back at 4:26 p.m.
re allegations that FBI information was being leaked.
From Mr. Dean re material delivered to the FBI.
From Mr. Dean re leaks concerning material delivered to the FBI.
To Mr. Dean. I have no recollection of the substance of this call.
Froiii Mr. Dean; referred to me through San DisgD field office; returned call at
10:30 a.m. re in'ormation leaked to newspapers.
Fro.Ti Mr. Dean re same subject.
To Mr. Dean to request P/lr. Hunt's toll call records.
From Mr. Dean re providing Mr. Hunt's toll call records.
From Mr. Dean requesting a sumiary of the status of investigation.
To Mr. Dean re transmission of a sumnary of status of investigation.
From Mr. Dean; informed him a summary of investigation had been signed and sent
to Attorney General.
To Mr. Dean. I have no recollection of the substance of this call.
From Mr. Dean requesting that he be provided copies of investigative reports.
From Mr. Dean re leaks of FBI information.
From Mr. Dean. I have no recollection of the substance of this call.
Do.
To Mr. Dean to inform him of a possible 2d intercept of communications case at
Democratic National Headquarters.
From Mr. Dean; referred to me at Kansas City Field Division. Call returned at
12:25 p.m. re leaks of FBI information.
From Mr, Dean re FBI safeguards against leaks.
From Mr. Dean re leaks of FBI information.
To Mr. Dean re news articles based on Mr. Young's affidavit.
To Mr. Dean to request return of second group of investigative reports.
From Mr. Dean re FBI request to interview Mr. Chapin and leaks of FBI informa-
tion.
1 All times are EDT or EST.
Senator Tuxney. Did you talk to him, say, in the first few days
after the flap broke?
Mr. Gray. I think my recollection is I didn't talk to him at all
until I got back to Washington on the 21st.
Senator Tunney. On the 21st?
Mr. Gray. Yes, sir.
Senator Tunney. But
Mr. Gray. But that is subject to correction.
Senator Tunney'. I understand. It is a long time ago and dates are
very difficult to remember.
Let's say that you talked to him on the 21st. That was approxi-
mately 2 days after he had confiscated the materials from the safe of
Mr. Hunt and approximately 5 days or 6 days before he turned them
over to 3'ou. Did he mention in that telephone conversation that he
had those materials?
Mr. Gray. No; he did not. He and I did not discuss his investiga-
tions at all and I wouldn't get into it. I absolutely refused. I just
wouldn't do it. If it had to come up I would say "No, I don't want
this."
Senator Tunney. Weren't you surprised to find out on the 26th
when he made these documents available to you, these materials
available to you, that you had had conversations with him earlier and
that he hadn't mentioned them?
Mr. Gray. No, not at all, because we didn't know at that time
what Hunt had, where his offices were, with whom he was working,
whether with Robert R. Mullen & Co., this kind of thing. The thought
never entered my mind.
358
Senator Tunney. Do you think Mr. Dean knew where Mr. Hunt
worked?
Mr. Gray. At that particular time, I think not.
Senator Tunney. But you don't know?
Mr. Gray. I don't know, absohitely not; no, sir.
Senator Tunney. When did Mr. Dean first indicate to you that
he wanted to sit in on the questioning of White House witnesses?
Mr. Gray. I think that was right at the outset, in that very first
conversation. My recollection is it was in that very first conversation
or the second. I think that was Wednesday, Thursday, or Friday,
right in that 3-day time frame. Senator.
Senator Tunney. Wliich would have been approximately 1, 2, or 3
days that he had the material from Mr. Hunt's safe when he men-
tioned that he wanted to sit in on the interviews with the White
House witnesses?
Mr. Gray. That would be correct.
Senator Tunney. Did any of the witnesses object, the Wliite House
witnesses object, to Mr. Dean sitting in?
Mr. Gray. If they did, no such objections have been reported to
me, sir.
Senator Tunney. Under normnl course, were they reported to you,
under normal course?
Mr. Gray. Certainly. My agents would have reported that to me
because, as 1 testified in response to a question from Senator Gurney,
there was some grumbling from my agents that they didn't feel we
were getting all we should be getting.
Senator Tunney. Who instructed the agents that Mr. Dean could
sit in?
Mr. Gray. I am sure that decision was mine, was conveyed through
the chain of command through the Special Agent in Charge through
the Washington field office.
Senator Tunney. A thing that I am a little confused about — and I
can understand the problem that you had at this particular point in
time, Mr. Dean being counsel to the President and your feeling that
everything you reported to him was being reported to the President, I
understand the sensitivit}^, the relationship that existed there — but
you indicated that Mr. Dean was sitting in on those interviews in the
position of attorney for the President. The attorney-client relationship
existed between Mr. Dean and the President. On the other hand, no
attorney-client relationship existed between the White House inter-
viewee and Mr. Dean.
Mr. Gray. That is correct.
Senator Tunney. So— excuse me, go ahead.
Mr. Gray. I was going to finish responding. The other situation here,
Senator Tunney, is where you have an employer-employee relation-
ship. This happens to us where he says I am going to have my counsel
sit in when you are going to interview my employee. We either take the
interview or don't take the interview. That is the option we have, and
in all the important cases we take the interview.
Senator Tunney. And allow the attorney for the employer to sit in?
Mr. Gray. Yes. Just so this record doesn't get obfuscated or con-
fused, let me state that our preference is that an attorney not be
present but in today's world it is becoming more and more the situa-
359
tion where attorneys are present. It is not normal, however. We prefer
the other way. The norm is still to conduct an interview without the
attorney.
Senator Tunney. At the time Mr. Dean was sitting in, you didn't
know what his relationship, if any, was with Mr. Hunt?
Mr. Gray. No, sir.
Senator Tunney. Let us say that
Mr. Gray. What I found out since indicates that he had no relation-
ship mth Mr. Hunt and this doesn't strike me as unusual. I have talked
to persons in the White House and said, "Hey, so and so called me up,"
and they' don't even know who he is. This has happened. This is a fact
of life.
Senator Tunney. Did Mr. Dean talk to any of the interviewees
prior to the time that the FBI interviewed them?
Mr. Gray. I don't know, sir, because I didn't inquire into any of his
inquiry work or any of his investigation at all.
Senator Tunney. You don't know whether he coached any of the
witnesses?
Mr. Gray. No, I wouldn't even have asked him if he coached any of
the witnesses, and we didn't.
Senator Tunney. But considering the fact that he had probably
more information than anyone else, other than the FBI, and inasmuch
as he seemed to have almost as much information at times as you did,
at least he had prior information with regard to Hunt, wouldn't it
have been a normal question to ask Mr. Dean if he was interviewing
the witnesses before the FBI interviewed them?
Mr. Gray. No, sir, because Mr. Dean had zero information at the
beginning and he stayed that way for a long period of time. As a matter
of fact, until the 21st day of July when I knew what kind of a situation
I was in, I wasn't about to be putting out information anywhere. I was
holding it as close as we could hold it. I think I testified earlier this was
the procedure. We were working at the case agent level and doing very
little writing because of the immediate nature of the inquiry and
because of the manner in which tlie teletypes and so forth were coming
in, and that information was held pretty closely. That is why at the
end of the first week, on that Saturday, I raised cain because those two
things appeared in the newspaper. He didn't have any information in
the beginning.
Senator Tunney. As of the 19th he had an awful lot of information
on Mr. Hunt?
Mr. Gray. I don't know what he had.
Senator Tunney. He had the materials he turned over to you.
Mr. Gray. That is right, and you can look at the inventories there
and they are not that great, the materials listed there.
Senator Tunney. There was bugging equipment, wasn't there?
Air. Gray. Oh, yes, that was there. I don't think it was actually
bugging, that is a specific electronic equipment. I remember the word
"Kelcom." It was certainly related to electronic trtinsmissions and
receptions, but I don't think w^e in our lab would classif j- it as bugging
equipment.
Senator Tunney. As of the 19th you knew Mr. Hunt had electronic
equipment that was pretty extensive. So he may not have had as much
information as you had, but he had a fair amount of information. Do
360
you think maybe the reason he asked to sit in on those interviews was
because of the fact he had gone through the safe and found out what
was in it?
Mr. Gray. No, I don't think so, sir. I think the reason he asked to
sit in was that he had a dearth of information and was trying to acquire
it in the easiest possible manner regarding the Wliite House involve-
ment. He doesn't have the resources at his command to the extent we
have. I believe that is the reason that was given to me, in his official
capacity as counsel to the President conducting this inquiry.
Senator Tunney. Did you speak to the Attorney General or the
President about it?
Mr. Gray. No, sir; I did not talk to the President.
Senator Tunney. To the Attorney General, about the attorney-
client relationship?
Mr. Gray. Not in the beginning. I didn't consider this to be highly
irregular or improper at all. Later I talked to him.
Senator Tunney. Highly irregular or improper for •
IVlr. Gray. Dean, counsel to the President, acting in his official
capacity ajid in his relationship to the President, to sit in on this.
Senator Tunney. And how about keeping the material from Hunt's
safe a week?
Mr. Gray. I don't think — I testified before about that, you
kno^^■ •
Senator Tunney. Don't think that is a problem?
Air. Gray. No, because the President has a rather substantial
interest as to what might be in those papers and I see nothing irregular
about it.
Senator Tunney. As Senator Byrd brought out this morning, not
only was the White House the first to know about Hunt's involve-
ment, but it had first access to the safe and desk remaining in Hunt's
vacant office in the Executive Office Building after his departure in
March, 1972, and I read from the answer filed by the Government to
the motion to suppress evidence.
As I understand it, you have no assurance that Mr. Dean did turn
over all the material, other than what Mr. Dean himself said?
Air. Gray. I said to Senator Kennedy that I can't say as a positive
fact that he turned over everything he found there. I have every
reason to believe that he did because of the interviews on this subject
in connection with the preparation of the motion papers. I added
also, to make my answer complete in this sense, that \\'hen you see
these kinds of things being turned over to you, your suspicious mind
begins to work and you figure if they are turning over this kind of
stuft' people are not trying to hide anything. I called John Dean
up and said, "Do you know a gun was in the safe?" I said, "You
jolly well had better check your security procedures." I said, "How
does a gun get inside the Office of the White House?" I called him on
that. " •
Senator Tunney. It is also true that you called pretty hot under
the collar when you read a newspaper report that somehow information
which had been turned over to Mr. Dean had perhaps gotten into
the hands of Mr. Segretti?
Air. Gray. That is right. I testified to that, quite a few times,
Senator Tunney.
361
Senator Tunney. What I am trying to find out is why was it a
White House counsel seemed to be so heavily involved in a FBI
investigation, to the point that at times it seems that he knew almost
as much about what was going on as you did, at least in the case of
Hunt he knew before you did, and he sat in all of these interviews.
He received 82 interviews from j^ou, including api)arently the inter-
views of people who had asked si)ecifically not to have counsel present
from the Reelection of the President Committee, and despite the fact
that they didn't want counsel present, still this material was also
turned over to Mr. Dean.
Do you have any knowledge as to whether any attenipts were made
to retaliate against those people who gave those interviews without
counsel being i)resent?
Mr. Gray. I would like to go back to the beginning of your state-
ment, if I may. We must \nit this in the proj^er time frame so the
record shows what hai)pened, because Mr. Dean had zero information
at the beginning. He was starting from ground zero. He sat in on only
the White House interviews. He didn't get any information until the
21st of July. We had completed the bulk of the real tough interviews
by that time and, Senator, it just isn't correct to state he had as much
information as the FBI.
I have no information, Senator, that he took an}^ retaliatory action
against those people. Once again, I would find this to be realh' a
breach of trust and I don't think John Dean would do that. He is
counsel to the President. He is sitting there in his official ca])acity and
this is being delivered to him in a la^^'ful manner in his official capacity.
Senator Tunney. Mr. Hunt was also in the W^hite House and had
some top secret information and he did certain things
Mr. Gray. Yes, but he certainly was not the counsel to the Presi-
dent. He did not occupy this kind of position. He did not discharge
this type of responsibility. I think really there is a vast difference
between Mr. Hunt's position and Mr. Dean's employment. Mr. Dean
sat in on 13 or 14 White House interviews and we made over 2,300
interviews. So it just isn't correct to say he knew as much as we knew.
Senator Tunney. I can't speak for other menibers of this com-
mittee, but what I am trying to do is to establish in my own mind the
degree of independence that you have of those White House counselors.
Now I understand that you take orders from the President and from
the Attorney General but by golly you don't take your orders
from White House counselors, or you shouldn't.
Mr. Gray. That is right, I don't. Those people over there knew,
John Dean and John Elirlichman both knew my thoughts going into
this thing, because I made it clear to them. They concurred and I
made the statement several times that no matter how far this reaches,
these facts have to be found out and put on the table. This is how to do
it. I am tr3dng to help you and show you, to demonstrate this kind of
approach. But right now, as far as you and I are concerned, it is a
one-on-one situation. You have to judge me. I know your questions
are well intentioned. I know they are proper and they are probing and
they are thorough and they should be. And I want to try my level
best to answer them, because I am trjnng to give you what went on in
my heart and my mind when this thing hit— by golly I mean it, and
Mr. Dean and Mr. Ehrlichman were told this.
362
Senator Tunney. I have no questions regarding your integrity,
believe me. I say this publicly. I think you are a man of integrity.
Bu t that, of course, does not answer the problem, which is whether
or not you have taken orders from Wliite House counselors and
whether or not Mr. Dean's activities during this period of time were
proper and whether your responses to him were proper.
Mr. Gray. It is a difficult position that the Members of the Senate
are in. It is a difficult position that I am in, because, you know, I
have turned down some requests for information. I told you this earlier
when we talked about the files, and I will continue to do that.
When I can't do the job my way I am going to go, because I came
to this town with reputation and integrity and I am going to leave
that way, so help me God.
Senator Tunney. In the answers you supplied to the committee
yesterday you amplified and corrected testimony of last week and now
state that you personally made the Dita Beard memo available to
Mr. Dean.
Your answers yesterday indicated that when you questioned Mr.
Colson on August 29, he told ^-ou he had sent Mr. Hunt out to see
Dita Beard last March. On what date did he do so, do you know?
Mr. Gray. No, I don't know the date. We will find it, though, and
we will put it in the record.
(Mr. Gray subsequently submitted the following document for
the record:)
Mr. Gray. Upon checking the record, I find that August 29, 1972, was the day-
Mr. Colson advised us he sent Mr. Hunt, in March, 1972, to Denver, Colorado,
in connection with the "ITT case."
Senator Tunney. You also stated that you did not explore with
Mr. Colson the precise nature of the Hunt visit since there was no
connection between Watergate and ITT. Did you at least ascertain,
that Mr. Hunt was talking to Dita Beard about ITT?
Mr. Gray. No, sir. I don't believe we did because we didn't connect
those two. I want to be sure I understand, so I don't — are we talking
about March, that we didn't question him in March, or this year?
Senator Tunney. In August.
Mr. Gray. Of 1972?
Senator Tunney. Yes.
Mr. Gray. I am almost sure we didn't, but I want to check that
rD-302.
Yes, after checking the record, I find we did not question Mr.
Colson as to the purpose of Mr. Hunt's trip to Colorado since there
was no apparent connection between that trip and the Watergate
investigation and we were not investigating the ITT matter.
Senator Tunney. I am not maintaining that Watergate and ITT
are linked in any way. What I am suggesting is there has been a pattern
of dissemination of information in the White House.
Specifically, you gave the ITT memo to Dean and shortly thereafter
Colson sends Hunt out to see Dita Beard and shortly after that she
begins to question the authenticity of the information.
Wliat I am driving at is that your testimony with regard to the
alleged leak of information to Segretti is that you did not feel it neces-
sary to go beyond Dean's word that he personally did not take the
363
document to Florida. The press report on Segretti indicates that in-
formation passed on to Dean got outside the White House as did the
Dita Beard memo which was passed on to Dean. I am suggesting that
it would have been normal to be more suspicious in October.
Mr. Gray. No; because I think you are stretching that anal3^sis
beyond reasonable bounds. I think it is an area that 3^ou have to probe,
but I think you have to respond to it in that manner, too.
Senator Tunney. You don't think that the fact that these things
happened, would in any way lead to any suspicion that documents that
3^ou were turning over to Mr. Dean perhaps could be leaked to other
people?
Mr. Gray. When you put it that wa}^, I have to put it that per-
haps anything can occur in this man's world. These days it is a very
troubled world and things can occur. I have got to admit that. But
then I have to bring m3"self back to what is most reasonable, and the
natural and probable consequences, and I have to evaluate what a
man's position is and that sort of thing. When I make these judg-
ments— the biggest proof of the pudding is that no leads were sent up
and we didn't sa}^ we have to go check that out and that kind of thing.
Senator Tunney. If I gave j-ou, the FBI, a document and that
document ended up in third party hands it would tend to make me
suspicious that you gave it to that third party.
Mr. Gray. That's right, and I think 3'ou would ask me.
Senator Tunney. Even if 3"OU denied it I would be suspicious.
Mr. Gray. I think, working with you, I would believe 3-ou, Senator
Tunney-.
Senator Tunney. You are too nice a gU3^, Mr. Gray.
Mr. Gray. I don't think so, I don't think so. I enjo3^ed my visit
with 3^ou in 3'our office, and I thought there was some chemical
afRnit3- there.
Senator Tunney. Mr. Gray, on page 216 of the transcript I asked
you whether 3^ou had procedural guidelines available to you. You
answered :
They are not procedural guidelines as such, they are rules and regulations of the
Department of Justice. We have the Manual of Rules and Regulations for the
FBI regarding each of our jurisdictional categories in which we investigate, dis-
semination of reports that are to be made thereunder.
A bit further on, 3^ou said they are not really guidelines but juris-
dictional perimeters established by the statutes of the United States.
The day I came into the FBI one of the very first avenues of inquiry that I
launched, one of them had to do with jurisdiction, because I knew this was a prob-
lem and we had a very fine paper developed on jurisdiction. We discussed it May
23 and 24 at our Quantico meeting. I have given explicit instruction we inves-
tigate only questions within our to jurisdiction.
Can you supply those for the record or is that impossible?
Mr. Gray. No, 3^ou are going to have me giving away things in
supplying those. I would prefer not to.
Senator Tunney. Were these guidelines followed ^dth regard to
your transmittal of Watergate memorandum to Mr. Dean on the 23d?
Mr. Gray. If 3^ou mean is there something specific in these guidelines
that sets forth in an Intercept of Communication case that we make a
transmission like this to the White House, I think the answer would
probably be that I wouldn't find anv^thing in there hke that with re-
364
gard to an IOC case. These are broken down with regard to categories
of cases and then you have to go into the area of what dissemination is
made to the Wliite House. In the past, the pohc}^ has been generally to
disseminate when and to whom the Director sa3^s. I am trWng to get
away from that to where we have it nailed right down. Then, in this
particular case, I asked for the opinion of our Office of Legal Counsel
before I caused to be jarepared the letterhead memorandum of July 21,
1972.
But what I would do Anth regard to the Manual of Rules and Regu-
lations, and jurisdictional statements, is to take a look as to whether
or not there is something that would be helpful to you. I would even
review that paper that was submitted in Quantico. There are going to
be some investigative technicpies and tactics in this material and that
is the reason I am hedging b}' not submitting it for the record.
Senator Tunney. I wouldn't want you to submit anything that
would obstruct your efforts at justice but it would be interesting to
note if, in turning over these documents to the White House and dis-
semination of information occurred as is alleged to have occurred,
there was a violation of FBI procedures?
Mr. Gray. I think not. Senator.
Senator Tunney. Mr. Gra^-, you have supplied this committee,
in response to questions asked Alarch 1st, material to the effect that
Mr. Baldwin informed the FBI the nature of the conversations which
were overheard at the Watergate. You state John Dean was furnished
certain specified information on FBI FD-802 forms. Did you supplv
Mr. Dean with material which included the substance of the conver-
sations overheard by Baldwin or others at Watergate?
Mr. Gray. I believe the 302 was in that group of 82 reports that
I supplied to Mr. Dean.
Senator Tunney. The substance of the conversations that he
overheard?
Mr. Gray. Yes. It is a natural thing. It wasn't the kind of thing
about who did what to whom, yet, as I recollect that .302, there were
some names in there. I would have to look at it again, but I believe
that there were some names in there.
(Mr. Gray subsequently submitted the following document for
the record :)
Mr. Gray. After checking the record, Senator Tunnej-, I find that Mr. Bald-
win's FD-302 set forth the nature of the conversations he overheard. In addition,
there are set out in the FD-302 the names of several individuals whose conversa-
tions were overheard.
Senator Tunney. Would it be appropriate or even legal for the
FBI to turn over contents of overheard conversations to third parties?
Mr. Gray. When you just say third party — remember, tliat
statute has the word "willfully" in it, and the legislative history of
the particular statute deals with that. With "willfully" you have got
an act that is premeditated, with malice, and withotit any legal
justification whatsoever. This, I think, is in the nature of turning
over those documents within the official chain of command of the
U.S. Government. It is not just turning them over to third parties.
Senator Tunney. But the W^hite House counselor is not a member
of the FBI?
365
Mr. Gray. No, he is not a member of the FBI, but he is sitting;
there in his official capacity as counsel to the President, conducting
an inquiry directed by the President of the United States. And I
think he is right in the chain of command and there is legal justifi-
cation. This is the point lawA-ers would argue about, and some lawyers
are not going to agree with you.
Senator Tunney. It concerns me, because I haye always had the
imi)ression that the FBI had information that should be kept sacro-
sanct and secret during the course of an investigation — if not there-
after. It seems to me that Mr. Dean had access to anything that yon
had in your files.
Mr. Gray. No, he didn't. There were 186 coni])lete reports. I sent
oyer only those that I had read and that was a total of only 82. I didn't
send over all of the reports.
Senator Tunney. Did you send over anj^thing that he asked for?
Mr. Gray. He didn't ask for anything specifically. He asked if he
might look at these in order to assist him in the course of his investi-
gation.
Senator Tunney. Let's just say that he made a rec^uest for all the
reports?
Mr. Gray. In a situation like this where he is charged by the Presi-
dent to conduct an inquiry, yes, I probably would have made them
available to him. But as I told you earlier. Senator Tunney, there are
circumstances imder which I don't, and I ask an awful lot of questions.
This was a unique situation. We have said this time and again, but I
have to point it out for the record, at the risk of belaboring the pomt,
where in other cases I wouldn't do it.
Senator Tunney. One of the interesting documents that you sup-
])lied yesterday was the State by State response compiled in answer to
Mr. Ehrlichman's request.
It was interesting to me to see the types of information compiled.
I am not going to read specifics because I don't want to put into the
])ublic record innuendoes and allegations against people who I think
have fine character. But there is information there that certain law
enforcement officials are associated with homosexuals, and things of
that nature.
Mr. Gray. Just one, and that is common knowledge. That is public
knowledge, and has already been — the things these men generated,
they were criminal justice things, derivetl from living and striving in
the community. We can dredge anything up out of our files. This
Avasn't just drawn from files. This was one of the living, breathing
criminal justice things out there in the commimity.
Senator Tunney. But it was in connection with campaigning?
Mr. Gray. I have already said it was an improper thing to do, and
I raised a lot of cain about it.
Senator Tunney. In an answer that you supplied this morning you
indicate, to my knowledge for the first time, that in an FBI interview
with Mr. Kalmbach on September 4th, he stated he recommended
Segretti as a man who would be of service to the Re])ublican Party.
He contacted Segretti to repay him, although he had no knowledge
of \\'hat Segretti was doing, and Kalmbach said he was accountable
to no one for the payments of record. Was anything done with this?
91-331—73 24
366
Mr. Gray. The U.S. Attorney has all of this.
Senator Tunney. And you turned these over to the
Mr. Gray. Yes, sir, that is our normal procedure. Of course, this
time we were working very, very closely with the U.S. Attorneys. I
don't know whether the indictments had been handed down by then
or not. No, we were still working with the U.S. Attorneys.
Senator Tunney. So that is still an open case?
Mr. Gray. The Watergate itself is an open case.
Senator Tunney. I am talking about this aspect of it.
Mr. Gray. I don't know what the Department of Justice is doing
with many aspects of this case.
The Chairman. Wliat you are is an investigative agency, isn't it?
Mr. Gray. That is correct.
The Chairman. You investigate and turn over what you find to the
Justice Department?
Mr. Gray. That is correct.
The Chairman. And they make the decision on whether to prose-
cute or not?
Mr. Gray. That is correct, sir; we don't recommend it.
Senator Tunney. I don't want to go into details of a case that is
still being investigated and considered by the Department of Justice
with regard to possible charges being brought. So I won't go on.
Mr. Gray. It is true in some of these cases. This is not a closed book
hy any manner of means. Senator Tunney. This is one of the problems
generated, I think, in the dialog yesterday morning before the com-
mittee.
Senator Tunney. I would like to go into a couple of areas with
regard to FBI procedures.
I \vish that these kinds of questions had been the sole subject of
these hearings.
Mr. Gray. So do I, Senator.
Senator Tunney. How does the FBI define organized crime?
Mr. Gray. We have — I have to define it for you by offenses and
by Federal statutes and groups of people, and distinguish it from
general crime. I thmk if we refer to our Federal statutes and those
statutes that have been enacted just recently in the decade of the
sixties, dealing mth racketeering in general, you would find in that
area certain syndicates that we know are engaged in this interstate
transportation — the ITSP statute, as we call it — in extortion of credit
and all of these kinds of things. These activities flow from the genera-
tion by organized crimes of investment capital through their illegal
gambling activities. They also reach over into the general crime field
because of their attempts to penetrate legitimate businesses, and
there is a very lively discussion going on right now within the FBI
as to whether we should continue to make that distinction between
organized and general.
Senator Tunney. Wliat did your inquiry with regard to organized
crime conclude?
Mr. Gray. The initial inquiry that we did, as a result of the early
papers and the meeting down at Quantico, concluded we were doing
rather well and indeed better than we were credited with doing.
However, it also indicated that there was a need to effect some changes
in our tactics and strateg}^ and to reallocate manpower. We have
367
done that, Senator. I am hoping, as we estabUsh a relationship with
this committee, and we have a subcommittee of this committee if
that be the wish of the Senate, that some of these things we will be
•able to discuss with a subcommittee of this committee. But that isn't
my problem. That is a consideration for the Senate. But we have done
many things.
Senator Tunney. You made some changes?
Mr. Gray. Yes, sir. We have different types of operations going and
operations that are on a ver}', very limited need to know basis, that
are not in keeping with the regular view of what the FBI does and how
we do it. I think really our record in delivering evidence to the U.S.
Attorneys, of arrests and indictments and the backlog of individuals
awaiting trial, is higher now than it ever has been in the Federal
Bureau of Investigation. I can't claim the credit. Only 10 months
of that is a result of some of the things we have initiated together.
Senator Tunney. Is it possible to describe some of these in this
forum?
Mr. Gray. It would be pretty difficult. Some of the things that we
have done with regard to transmitting narcotics intelligence and the
stepped up effort in the whole field of narcotics, I have little note
cards, that kind of thing. I could insert some of those in the record.
Senator Tunney. Would you insert those in the record?
Mr. Gray. I would like to insert just a few. We are getting the source
information, but I can say quite a few of the recent narcotics arrests
have been in the big cases I am talking about now and have been
as a result of FBI information.
(Mr. Gray subsequently submitted the following document for the
record.)
Mr. Gray. In September, 1972, local and state authorities in Illinois, utilizing
information from an FBI informant, arrested three individuals in a series of inter-
related raids and seized more than $400,000 worth of marijuana.
On November 4, 1972, information disseminated to the Royal Canadian Mount-
^d Police and to the Bureau of Narcotics and Dangerous Drugs assisted in the
arrest of seven members of a major smuggling ring and the confiscation of some
:$2, 500,000 worth of heroin. Approximately one month later, same two agencies
utilized information developed by the FBI during the course of investigation that
resulted in the arrest of one individual and the seizure of an estimated $3,250,000
in heroin.
On February 21, 1973, the Los Angeles County Sheriff's Office, acting on
information provided by the FBI, arrested two individuals and seized cocaine
having an estimated value of $3,000,000.
Senator Tunney. Maybe you can also insert in the record any
suggestions you have for legislation to make prosecution of organized
-crime figures easier.
Mr. Gray. I have a problem with that. The Department of Justice
says the}' speak legislatively for the Department of Justice, so all
of my recommendations have to go to them. That is the way the De-
partment's legislative program is built, Senator, and may I be excused
from that cpiestion?
Senator Tunney. Wliat are the FBI's procedures for cooperating
with other national and local police agencies in investigation of
•organized crime? Do you believe there are any impediments to any
■cooperation at the present time and if so, how can they be removed?
Mr. Gr\y. There may well be some now, but I doubt it. If there
.are, it would be through personalities, because early in the game I
368
met with all these major city pohce chiefs — met with them in small"
enouo;h groups so the}" could let their hair down, and we could really
talk frankly with one another. I think they believe we always hav^e
cooperated with them and we mean to cooperate in the future as far
as we can go. The people in the FBI know that we have to work to-
gether, we can't do the job unless we work together.
Senator Tunney. With regard to subversion, what was the results
of your detailed analysis and justification for the current policy in
regard to investigation of individuals where there has been no specific
violation of Federal law?
Mr. Gray. The problem here. Senator Tunney, is speech versus
conduct and where do you move across that line where the conduct
tends to go to violence. But I think I have emphasized pretty heavily
within the Federal Bureau of Investigation that first amendment
rights are indeed critically important and this believe me, v/as the
belief within the Federal Bureau of Investigation. I think there comes
a time, an era in a nation, where things get hot and heavy and we have
been through this kind of a thing. We may still be in it, I don't know.
But as far as I am concerned, with regard to the rights to associate,
the rights peaceably to assemble and petition one's government,
I don't have any problems with that.
Where I have the problem is where that speech translates itself
into conduct and where some become embroiled in advocating violent
conduct and indeed engaging in violent conduct. I think we have a
duty to be aware through our intelligence gathering methods of these
types of individuals. I cannot see us wasting manpower investigating
those who are not advocating, preaching and practicing violence, not —
I can't say on a continuing basis, but frec^uently enough to give us
cause for some concern.
Senator Tunney. Have you developed procedures within the FBI
as to how this type of surveillance takes place and who makes the
decision, if it will take place, and who is considered to be an advocate
of violence?
Mr. Gray. Yes, sir. I have to make that decision. In memoranda
coming up to me, my people have to spell out the jurisdictional basis
on which they base this request. Then I must consider the sum total
of the evidentiary pattern and the laws of the United States and make
a judgment as to whether or not we are indeed going to look into this.
If we miss one of these — and once again I am getting into some tough
areas of testifying — but I think something that occurred today is
public knowledge and it occurred through our efforts in watching
people who advocate violence, who practice violence, not contin-
uousl}^ but frequently enough to give us cause for concern.
Senator Tunney. You can't make a decision in every case. Do
you have any kind of procedures?
Mr. Gray. Sure, they know, this has to come right on up through
the regular chain of command. The case agent through the field
supervisor, the SAC and Intelligence Division and headquarters and
right up to me. They work with me closely on this. I raise cain with
them. Wliy didn't we know about De Mau Mau, why didn't we know
about the Tullers? How manj^ bases can ^^ou cover all the time? That
is our problem right now.
369
Senator Tunney. Wliat are the standards in deciding to infiltrate
groups? Is this less than probable cause?
Mr. Gray. I'd like not to discuss that at all in this pubhc forum.
Senator TuNNEY. But you have procedures?
Mr. Gray. Yes, indeed. My people know exactly how I feel on
it and I know how they feel on it.
Senator Tunney. Ai'e these written procedures? Are they word of
mouth procedures?
Mr. Gray. No; I don't think they would be word of mouth. I
don't know. I would have to check to see if we have any SAC memos
outstanding on this, but as a result of executives conference meetings,
the Quantico meeting, notes that I request on certain things, it is
sort of like building up case law as to what the Acting Director's
decision is on this and how we pursue these activities.
Senator Tunney. Is this done pretty much on a case by case basis?
Mr. Gray. Yes; it is. But it is done on a continuing basis, too,
where there are groups.
Senator Tunney. And what are the standards that are used in
■deciding what groups are ones that are say prime subjects for sur-
veillance?
Mr. Gray. Those who advocate violence and those who practice
violence. The speechmakers we are not interested in. We don't have
the troops to do this kind of thing. We just don't have it. I have
requests now for additional agents to do other kinds of things in the
intelligence area that have nothing to do with this kind of operation.
Senator Tunney. Then I would assume that your answer is that
the Bureau does not have a policy of collecting information about
groups based mainly on political identification or racial identification?
Mr. Gray. I think every man and woman in the FBI has that mes-
sage loud and clear, and I am not at all sure from our study of it that
this was our j^olicy in the past at all.
Senator Tunney. With resjject to informants, is there any require-
ment that special agents recruit a certain minimum of informants?
Mr. Gray. No, sir. I have said there shall be no quotas and we are
seeking in all of our efforts quality rather than quantity. There have
been many messages put out on this, teletypes to the field, the inspec-
tion division has been alerted to look into this, and we have driven
heavily and hard on this.
Senator Tunney. How about the structures that exist that assure
the on-going reliability of informants? For instance, how does the
Bureau protect itself against the informant who fabricates information
regarding other people in the community?
Mr. Gray. We have to corroborate and verify and check out, and,
you know, I hate to sav — well, I will say it — some of these peo})le
have to be carried as potentials before they are carried as regulars.
We trjT^ ver}^, very hard to evaluate them because we know we are open.
We can be exj^osed at any time. We have to be aware of the double
agent ])ossibility all the time. It is a real hazard and as far as our
reputation is concerned, it is something we have to work at and we do,
Senator. We tr}^ very, very hard. It is a thought that goes through my
head every time — in discussions of this program, in considering in-
dividual reports: have we verified and corroborated; how do we know
we are not I)eing duped? I ask this all the time.
370
Senator Tunney. With regard to the Director's advisory committee,
which has been created by you, what do you think that the advisory
committee should consist of in the way of individuals?
Mr. Gray. Well, I considered that, Senator Tunney, but I shot it
down after a long, long line of thinking and many papers and many
discussions with the field commanders, the special agents in charge of
the Federal Bureau of Investigation. There is no way to work it with
citizens groups. The tyi)e of institution we have, the type of informa-
tion we handle, is of the utmost sensitivity. I can't say that any other
Government agency in — well, I had just better stop right here.
For example, I tried an experiment with a law enforcement training
advisory committee with prominent law enforcement people, et cetera,,
and they did a tremendous job. But when it came to the point where
we had to have public meetings and discuss these things, well, it has to
go out of the picture because w^e couldn't discuss it. But we worked
w^ith them for 6 months, and they were tremendously impressed with
us and we were tremendously impressed with them. We worked with
them together with the University of Virginia, \vith whom we have an
affiliation \\dth our National Academy.
Senator Tunney. Do you feel that, the FBI is subject to adequate
controls within the Justice Department?
Mr. Gray. I think so, sir, because we are dealing with many
attorneys within the Justice Department, not just an Assistant
Attorney General and a Deputy Assistant Attorney General, but
many career attorneys. We deal with many of them, as well as polit-
ically appointed attorneys. Then our work product is always subject
to the scrutiny of the courts. We have some, I think, rather tight
controls as far as the legal and investigative relationship is concerned,
and the judicial relationship is concerned. I will be the first to admit,
however, that we have room to improve in our relations with the
Congress and with committees of the Congress. There would be the
void.
Senator Tunney. Between the Congress and the
Mr. Gray. Yes.
Senator Tunney. How about the problem you are presented with
of reporting directly to the President as well as to the Attorney Gen-
eral? Does that create a difficulty for the FBI?
Mr. Gray. No; I have never thought so, Senator Tunney, and I
would like to tell you why. I feel that a man who comes through our
political process, as tough as it is, the adversary system that it is — I
have noted earlier all the things we ask our elected officials to do, and
rise step by step through that process. When such a man becomes
converted into a President, I think, the whole nature of the man is
hit by the awesomeness of that office. I think whatever may have
been the problems and adversities he encountered along the line,
when he becomes President the buck stops there and he considers
the overall well-being of the Nation. I have never felt any problem
working that way, and as an individual I don't feel I have a problem
in speaking my mind.
Senator Tunney. I was not thinking of that so much as reporting;
both to the Attorney General directly and to the President directly.
This is no problem?
Mr. Gray. No; I don't find that to be a problem.
371
Senator Tunney. Do you feel the FBI should continue to have a
lump-sum budget?
Mr. Gray. Yes, sir. I can tell you if we didn't have one we would
be in tough straits right now. We have to hone and cut and pare and
live within our budget. For example, just today I refused to buy
289 automobiles which were authorized and appropriated because I
need that money for training. When we operate with that kind of a
budget we can do this kind of thing. I think right now, and I have
said this to my budget people, we have to stop this business of trying
to live out of next year's pocket right up to the end. We are doing
this, surveys and studies are going on right now. We have to analyze
what we need, budget for it and spend for it, and we have to stop
this business of living from hand to mouth. It has been a very, very
tight fiscal operation in the FBI.
Senator Tunney. Mr. Chairman, do I understand that you would
like to wind up?
The Chairman. No; I just want to know how much longer you
will be.
Senator Tunney, Just about 5 more minutes. I appreciate youi
indulgence. I just want to get some of these questions on the record.
The Chair:\ian. Go ahead.
Senator Tunney. How does the FBI handle complaints from indi-
vidual citizens that FBI agents have violated citizens' rights?
Mr. Gray. Wlien we have complaints in the field divisions our In-
spection Division moves immediately. They report to me and I move
the men on.
Senator Tunney. Do you feel there ought to be any kind of om-
budsman procedure within the FBI or within the Justice Department?
Mr. Gray. No, I don't. When I have seen our Inspection Division
go into cases that I have ordered them to enter, they go in heavily,
and there are some tough cases— in your home State — they just
really go into it.
Senator Tunney. In A^our months as Acting Director, did you find
that the FBI suffers from too little external control or too much ex-
ternal control? What are your thoughts on it?
Mr. Gray. No, sir; I don't feel that we are suffering from too niany
external controls. I feel we are in about the right position, the position
we ought to be. If we have any, the void exists here in the relationship
with one of the great branches of our government.
Senator Tunney. With the Congress?
Mr. Gray. Yes, sir; a lot of people wouldn't agree with me but
that is my judgment.
Senator Tunney. What is the Bureau's policy with regard ta
electronic surveillance and wire tapping in national security cases?
Mr. Gray. Probably as tough a one as we can devise, with the
checks that we have along the line and the requirements that must be
set forth in detail before that document ever gets to me. One step in
the review before it gets to me is in the Office of Legal Counsel. Every
single one of them is reviewed. I am talking about the FBI Office of
Legal Counsel, not the Department of Justice Office of Legal Counsel.
Then there is my final review and my transmission to the Attorney
General.
372
Senator Tunney. In all instances the Attorne}- General makes the
final decision?
Mr. Gray. Yes, sir; that is correct.
Senator Tunney. Does the FBI have &nj procedures for assuring
itself information obtained from other police agencies which is then
stored in your files is not the result of illegal electronic surveillance
or wiretapping?
Mr. Gray. I don't know that we get that kind of information from
other police agencies in writing or in the form of a file. I am going to
have to check that. My understanding of it is that we do not, that it
is a working level type of information — like the case I was citing to you
that may very well be publicized today when we have all the informa-
tion. It was a phone call to our field office in a certain city and a phone
call from that field office to the police department concerned.
(Mr. Gray subsequent!}' submitted the following document for the
record :)
Mr. Gray. We would not accept nor would other police agencies likely advise
us of information they had obtained as a result of illegal electronic surveillance or
wiretapping. The obtaining of information in such an illegal manner is a violation
of Federal law within the investigative jurisdiction of this Bureau pursuant to
O.S. Code, Title 47, Section 605, and Title 18, U.S. Code, Sections 2:310-2513.
It should be observed, however, that a number of state jurisdictions, actually
a total of twenty, have provision for legal interception of communications pursu-
ant to state law. Receipt of information from police agencies in these states ob-
tained according to their laws would be proper.
Senator Tunney. Does the Bureau maintain that there is any legal
basis to conduct electronic surveillance or wiretapping other than the
1968 Crime Act?
Air. Gray. On the national security surveillance type, by direction
of the President, yes. You know, this is the whole field of national
security, foreign intelligence, and of course that has been somewhat — ■
at least one part of it was raised in the Keith decision the Supreme
Court handed down somewhere in the middle of June last year. Of
course, the Keith decision is observed in every one of the applications
that comes to my desk today. Each application must have a specific
statement by the Office of Legal Counsel that this has been examined
wathin the limits and perimeters of Keith.
Senator Tunney. Just a few more questions. With respect to the
Bureau's policy with regard to the investigation of alleged violations
by local police of civil rights, who conducts these investigations, what
are the procedures?
Mr. Gray. We do, Senator. I have changed those procedures a
little bit because of some of the complaints that have been made and
because of the unfairness, I thought — once again this is my judg-
ment, made in conjunction with the exectitive conference of the FBI.
It was my jiulgment that it was unfair to the police, unfair to the
citizen who had made the complaint, and unfair to the special agents
of the FBI involved to send them in to investigate complaints against
police with whom thev associate regularly. We do not do that. We have
a specific order out now, which I issued, setting forth clearh' oiu' policy
that this shall not occur. In the major cases, I send in agents completely
out of the area concerned. Down in Baton Rouge, in the Southern
Liniversity situation, for example, I could have taken agents from New
Orleans and sent them up to Baton Rouge because there was no con-
373
nection between our offices in New Orleans and Baton Rouge. Even
though I had a topnotch agent in charge in Baton Rouge, I brought
in an agent from outside. That is our pohc^^
Senator Tunney. That is your poHc}?
Mr. Gray. Yes, sir.
Senator Tunney. Well, thank you very much, Mr. Gray, for
answering these questions on these procedures so thoroughly.
I have no questions about your competence to be the Director of the
FBI, from the procedures that you have instituted and from what I
have heard about the way you have managed the problems.
The only problem I have ^vith your nomination is the question of
the political implications that have been raised and regarding your
relationship with political appointees in the "W^iite House — not the
President, but political appointees in the White House.
Mr. Gray. You have been very kind and generous. I hope I have
been and will be able to persuade you of the feeling in my heart when
I made those very early statements — that we were going all the wa^-
with our investigation, no matter how it goes, and that this would be
the best thing that could happen. I said it then. I meant it. The people
agreed with me. This was very, very helpful to me. But I understand
the difficult position in which the members of the committee find
themselves.
Senator Tunney. I would like to believe that the future would be
one in which you would not be overly responsive in political terms to
am^one, including counselors to the White House.
T do, however, feel that we ought to have Mr. Dean. I have said that
pidjlicly. We ought to have Mr. Dean testify before this committee.
I have indicated publicly that at the first executive session we have, I
am going to make a motion to have Mr. Dean come before this
committee. I think Mr. Dean's name has come up so frequently that it
is important that there be laid to rest some suspicions we have with
regard to Mr. Dean's relationship with the FBI.
I want to thank you for 3-our answers toda}^.
Mr. Gray. Thank you, Senator Tunney.
The Chairman We will recess until 10:30 tomorrow morning.
(Whereupon, at 4:42 p.m., the committee was adjourned until
10:30 a.m. on Thursdav, March 8, 1973.)
NOMINATION OF LOUIS PATRICK GRAY III
THURSDAY, MARCH 8, 1973
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The committee met, pursuant to recess, at 10:45 a.m., in room 2228,
Dirksen Senate Office Building, Senator James O. Eastland, chair-
man, presiding.
Present : Senators Eastland , Ervin, Byrd of West Virginia, Tunney,
Hruska, Gurney, and Kennedy.
Also present: John H. Holloman, chief counsel, and Francis C.
Rosenberger, Thomas D. Hart, and Hite McLean, professional staff
members.
The Chairman. The committee will come to order.
Senator Kennedy.
Senator Kennedy. Thank you very much, Mr. Chairman,
Good morning, Mr. Gray.
TESTIMONY OF LOUIS PATRICK GRAY III— Resumed
Mr. Gray. Good morning. Senator.
Senator Kennedy. Some of the concern that has been expressed
in the course of the questioning of you about the role of Mr. Dean
when he was sitting in on various interviews, and about the com-
munications between the FBI and Mr. Dean, has been highlighted
in a number of newspaper stories. The Washington Post has raised
questions about the relationship between Mr. Dean and Mr. Hunt,
for example. Mr. Dean and Mr. Liddy were working in tandem on legal
problems related to the committee to re-elect's money, and there
were also legal volunteers working in the White House itself on these
matters, presumably under Mr. Dean. And we have seen the story in
the Post that, at least in Mr. Hunt's eyes, Mr. Dean should be one
•that Hunt could look to for some help in trying to get some legal
counsel.
Then we have the story from September 18 by Mr. Clark Mollenhoff
talking about the position of Mr. Dean and Mr. Dahlberg's $25,000
check, indicating that Mr. Dean at least felt there was some legal
basis for the treatment of the check despite the contrary view of the
GAO. So there were at least three different newspaper reports which
have raised legitimate questions which lead one to wonder whether
at any time you had any concern in making available the investiga-
tive material on the Watergate affair to Mr. Dean, whether you
thought, for example, that he was completely separated from any
kind of Watergate involvements given, as I mentioned, a series of
(375)
376
instances, the advice on the Dahlberg check, the fact that ]\Ir. Hunt
even during the course of the earl}^ investigation thought lie coukl
ask Mr. Dean for counsel, the fact that, according to a newspaper
report this morning, the close relationship between Liddy and Dean.
I am wondering what your reaction is to some of these reports, and
whether you had an}^ kind of feeling before that there was at least the
possibility that Air. Dean was more involved in this Watergate affair
than otherwise might have been thought, and whether, on the basis of
"regularity," access to the files and interviews should have been
extended under these circumstances?
Mr. Gray. Yes, Senator. Addressing myself to the point in time
when this occurred, my best recollection, and I feel quite certain
that my memory is good on this, is that we had no indication-; what-
soever that Mr. Dean was involved in any way, where he might have
been asked to represent a'l^^body. This just never did coms up. I knew,
of course, that he was counsel to the President, and I knew that the
President had named him to conduct this inquiry. I did not at any
time believe that he was comj^romised nor did I believe at any time
that, had there been any reason to consider that he was compromised
in any way by Watergate, the President would have designated him
as the individual to conduct the
Senator Kennedy. Perhaps the President didn't know.
Mr. Gray. This could be a possibility. Senator. Really that would
be a very, very remote possibility. We really had no information on
the basis of the reports coming in to us from all kinds of sources that
Mr. Dean was involved in anv way. In particular, I remember well
the $25,000 and the $100,000 which we tried awfully hard to locate
in the beginning. We got those leads and got the information early on.
We ran across nothing involving Mr. Dean in any of this. So I would
say, at that point in time, and right up until this point in time, I had
no indication, no reason to believe, and the information available to
me didn't create any thought in my mind that he would possibly be
involved in the Watergate.
Senator Kennedy. Did these reports which are alleged in the news-
paper about the relationship between Mr. Dean and Mr. Hunt, come
as a complete surprise to you?
Mr. Gray. Well, I guess you would have to say I was surprised to
read that because of the fact we had absolutely no information, out
of all the many trails that we crossed throughout our interviews, that
this would be so. I just must believe, Senator Kennedy, that it is
not correct.
Senator Kennedy. Then in the pursuit of Mr. Liddy, you didn't
run into any kind of trails of Mr. Liddy in conversations wdth Mr.
Dean about the finances of the organization?
Mr. Gray. No, sir, none that I recall. Of course, we were not per-
mitted to interview Mr. Liddy. But we tried to trace their pattern of
movement, Mr. liddy's and Mr. Hunt's, where they might have gone
and who they telephoned and that sort of thing, and it just didn't
show up.
Senator Kennedy. As was suggested in the newspaper this morning?
Mr. Gray. No, sir.
Senator Kennedy. And even the activity of Mr. Dean in advising
and giving his legal opinion that that check, the Dahlberg check, was
legal contribution as opposed to the GAG assessment, didn't set off'
any kind of a signal to you?
877
Mr. Gray. I didn't know of his legal opinion at that time. The
information we have, of course, is that that check was put in other
hands to make a determination as to its legalit}^ The information we
o'otained from Mr. Dahlberg was that it was a contribution he had
collected when he was in Boca Raton in his fundraising activities, and
that information, of course, later turned out to be correct.
Senator Kennedy. The instances that I have just touched on
briefly, of course, have been reported in the newspapers. But it is your
testimony that in your investigation of the committee it developed
that you didn't find any other kinds of Imes that led back to Mr.
Dean?
Air. Gray. None, sir.
Senator Kennedy. Of course, the personnel of CRP in many
instances were people who had worked over there in the White House,
had been associates. Of course, the former Attorney General had
Avorked as the Attorney General and then went to the committee. So
it isn't really enormously surprising that a number of people that were
very much involved in the CRP organization had been m the White
House or were associates, were friends known well to someone like
Dean who was still in the White House?
Mr. Gray. I think probably it is correct to state. Senator Kennedy,
as you have, that the top officials of the Committee to Reelect the
President indeed knew Mr. Dean, and I was aware of that fact.
Senator Kennedy. Were j'ou concerned about that?
Mr. Gray. No sir; I wasn't.
Senator Kennedy. Wliy not?
Mr. Gray. Once again, Senator, j^ou have to operate on the basic
presumption of regularity. When 3 ou put that together with all the
threads of information that are coming in to 3'ou, and you don't see
any evidence whatsoever of involvement, wh}', I just don't become
concerned and I didn't. That is the truth of the matter.
Senator Kennedy. Well, now, could I direct your attention to the
July memorandum that was supplied to the White House at the request
of Mr. Dean. You supplied for the committee the transmitted memor-
andum, and the cover letter, I believe, did j^ou not?
Mr. Gray. Yes sir; we did.
Senator Kennedy. Ai'e there smy other materials besides that cover
note and memoranda that was supplied?
Mr. Gray. That was going to be supplied, sir? I had originally in-
tended to supply the opinion of ni}' office of legal counsel. I believe
that we did not supply it. Yesterday it was requested, and then I
testified that it was my intent that it be included and certainly it will
be included.
[Mr. Gray subsequently submitted the following document for the
record :]
Senator, I find that we previously supplied the memorandum concerning the
opinion of the Office of Legal Counsel to the Committee.
Senator Kennedy. But I am correct in assuming that the onh' other
material that was added or appended to the memorandiun to Mr.
Kleindienst was the cover sheet that was transmitted, I think the one
that you supplied, that single page?
Mr. Gray. Yes; that is correct. It is my very definite recollection of
-getting that back and writing my initials, LPG there to the left, right
there where the line is from the Acting Du'ector.
378
I could check again but I am absolutelj^ positive that the only thing-
that went up there was the letter of transmittal and the letterhead
memorandum itself. I am sure that is correct testimony.
Senator Kennedy. Do you have a cop}" of that?
Mr. Gray. Of which, sir?
Senator Kennedy. Of the transmittal memorandum.
Mr. Gray. I don't have it in front of me. I know Mr. Flug asked for
it and we provided it.
Mr. Kennedy. Could I just be very brief and read it into the record
and see if that is accurate. [Reading] :
July 21, 1972.
To: The Attorney General.
From: Acting Director, FBI.
Subject: James W. McCord, Jr., and others; Burglary ot Dtmociatic Party
National Headquarters, June 17, 1972; interceptitm of commu.Mcations.
There is attached for your information a letterhead memorandum setting forth
the highlights of investigation conducted to date in cajationed matter.
Copies of all investigative reports in this matter are being furnished on a contin-
uous basis to Henry E. Petersen, Assistant Attorney General, Criminal Division.
CB/jak (10)
Is that your memory of the memorandum?
Mr. Gray. Yes sir; Senator Kennedy, that is. I can recall absolutel}^
nothing else that went up with this.
Senator Kennedy. Well, how was the recipient, the Attorney
General, supposed to know that this was to be transferred over to Mr.
Dean?
Mr. Gray. To the best of my recollection, I had a telephone conver-
sation with the Deputy Attorney General. I told him that Mr. Dean
had made this request of me. I explained to him the steps that I was-
taking and that I would cause to be prepared, if the legal oi)inion was.
satisfactory, a letterhead memorandum as requested and that I would
send it to the Attorney General.
Senator Kennedy. Could you tell us any more of that conversation
with the
Mr. Gray. No; because I think that is all that the conversation,
involved, Senator Kennedy.
Senator Kennedy. So there was nothing on the transmittal memo
that would anywhere indicate this was the one going to Mr. Dean?
Mr. Gray. No sir; because, as I have testified earlier, what I am
trying to do in the Federal Bureau of Investigation is to get this pro-
cedure stabihzed, to deliver written materials through the Attorney
General. I testified to that effect earlier. This is what I am trying to do.
Senator Kennedy. There were just two copies then, one for the
Deputy Attorney General and one for the Assistant Attorney General?
Mr. Gray. I beheve that is all but I would have to actually check
to make certain what was appended to it. If you read the transmittal
memorandum, that is what it would indicate and that is normally
what would go.
Senator Kennedy. You were supposed to transfer his copy over ta
Mr. Dean?
Mr. Gray. No, sir; I don't know what those arrangements were
I just have no infonnation on that, sir.
Senator Kennedy. You really don't have any direct knowledge
as to whether it actually got to Mr.
Mr. Gray. No, sir; I cannot testify as a fact under oath that that
next step was taken. I do not know.
379
Senator Kennedy. Is that a usual way of proceeding, where you
would have some directive from the White House for certain material
and that it would be sent over to the Attorney General?
Mr. Gray. No sir; that is not the usual way. In fact, an examina-
tion of the m.emorandum from my legal counsel would show that.
It hasn't been that well defined and that well stabilized and that is
what I am trying to do. That is my ultimate objective. But it
seems to be, and I testified to this before, when the late Mr. Hoover
was the Director, that very often the Director would say, "I am
going to send a copy of this to the Assistant to the President" or to
whomever, and it would be sent. There was not a regularly estabhshed
way of doing this. Even today in many areas we respond directly,
as in name checks for example. In very quick background investiga-
tions, we respond directly.
But I am trying to formally structure it so that I report through
the Attorney General. He is my boss in the chain of command.
This was the whole purpose of that exercise, really. Senator, and
it was also to make sure that I was on firm ground.
Senator Kennedy. Would the FBI records indicate that at least
a note was made that this was the procedure which was being followed
that the memorandum was being given to Mr. Kleindienst and was
to be later sent over?
Mr. Gray. I doubt it very much.
Senator Kennedy. You mean once a memorandum leaves the
FBI, there is no indication withm your own files as to what has
happened to it, where it is going?
Mr. Gray. We sent it to the Attorney General, yes sir; we would
show it
Senator Kennedy. Where, in a buck slip or an entry in some
Mr. Gray. No, I would have to check the mechanism of reporting
back to know whether we have any record which shows the actual
delivery. I am thinking of the regular way now. The procedure
would be to carry this directly to the Attorney General's office and
the Attorney General's office would log it in, at either the executive
assistant level or the personal secretary level.
vSenator Kennedy. I asked you the other day about the Time
Magazine wiretapping allegations.
Mr. Gray. Oh yes, you asked me that question, four, five or six
times, Senator, and I answered. My testimony is really a matter of
record in that area
Senator Kennedy. Well, let's stop here. If it is a matter of record
I think the record would indicate that you did not talk to the Attorney
General.
Mr. Gray. Oh, that particular thing, no I did not talk to him.
Senator Kennedy. Well, I received a communication from the
Attorney General, that I will ask to be made a part of the record,
in response to a letter I wrote to him as chairman of the Administra-
tive Practices Subcommittee, which was a parent committee for the
1968 electronic device legislation, I had sent a letter over to the At-
torney General asking for a reaction to the Time allegations, and I
will ask it be made a part of the record as well.
380;
U.S. Senate,
February 27, 1973.
Hon. Richard G. Kleindienst,
Attorney General, Department of Justice, Washington, D.C.
Dear Mr. Attorney General: The allegations in this week's Time magazine
regarding electronic surveillance of newsmen and White House staff raise ex-
tremely serious questions of policy and procedure in this field. As you know the
Subcommittee on Administrative Practice and Procedure, which was a parent
of the 1968 law on electronic surveillance, maintains a continuing interest in this
subject.
In view of the deep concern of members of the Subcommittee and other Senators
about the Time allegations, I think it is important that we have a detailed and
comprehensive response from you covering both .your personal knowledge and
the information you can obtain with regard to the specific matters alleged, as
well as any related or similar activities, facts, or discussions which might have
given rise to, or might expalin, the allegations.
It would be very helpful if we could have your reply as soon as possible this
week.
With best regards.
Sincerely,
Edward M. Kennedy,
Chairman, Subcommittee on Administrative Practice and Procedure.
Office of the Attorney General,
Washington, B.C., March 1, 1973.
Hon. Edward M. Kennedy,
U.S. Senate,
Washington, D.C.
Dear Senator: I have your letter of February 27, 1973, concerning the allega-
tions in the March 5, 1973 issue of Time magazine, regarding electronic surveil-
lance of newsmen and members of the White House staff.
I appreciate and share your concern regarding these very serious allegations.
As a consequence, I immediately investigated Time's allegations and j^ersonally
contacted the Acting Director of the Federal Bureau of Investigation, Mr. Gray,
and former AttorneA' General Mitchell. On February 26, 1973, the same day that
Time magazine's story appeared, I issued a statement categorically denjing the
allegations in the Time magazine article. Apparently, my statement to the press
was published after your letter to me. I am enclosing, for your information, a
copy of my statement.
I would like to reiterate that Time's story has no basis in fact. During the period
of the alleged wiretapping, a search of the Department's records reflects that neither
my predecessor, jNIr. ^litchell, nor I, authorized any electronic surveillance of news-
men, as reported by Time, nor of any members of the White House staff.
Sincerely,
Richard G. Kleindienst,
U.S. Attorney General.
Now what the Attorney General wrote me was: "I have your
letter of February 27, 1973, concerning the allegations in the March
5, 1973 issue of Time magazine, regarding electronic surveillance of
newsmen and members of the White House staff. I appreciate and
share j^our concern regarding these very serious allegations. As a
consequence I immediately investigated Time's allegations and
personally contacted the actmg director of the FBI, Mr. Gray, and
former Attorney General Mitchell".
Mr. Gray. He did talk to me, but it was after the fact, Senator
Kennedy. It was after this occiuTed.
Senator Kennedy. I asked after the fact, too. What did you think
my questions last week were about?
Mr. Gray. I answered your questions and I will stand on that
testimony.
381
Senator Kennedy. I asked you whether you talked to the Attorney
General and you said you talked to the public information officer.
Mr. Gray. That is right. That was right at the inception and I
talked to the Attorney General after the fact, after the press release
had gone.
Senator Kennedy. After? He said "immediately" "As a consec[uence
I immediately investigated, and personally contacted the acting
director, Mr. Gray."
Now, I asked you last week whether you talked to him.
\h'. Gray. That is right, you did, and I told you with whom I
talked. The questions are here. I have them. Jack Hushen called me
t^\^ce. That is the man to whom I talked on the telephone.
Senator Kennedy. I asked you about whether you talked to Mr.
Kleindienst, didn't I?
Mr. Gray. That is correct, sir.
Senator Kennedy. You told me, Mr. Gray, you told me there is
this article — well let's start at the top.
Senator Gurney. Could we have the page number?
Senator Kennedy. Page 274 [of the typewritten transcript].
I said: "That is the only contact you had with the Justice Depart-
ment?
"Mr. Gray. On this?
"Senator Kennedy. On this issue.
"Mr. Gray. Yes. 1 haven't talked to Assistant Attorney General
Olson on this at all, I have not discussed this with the Attorney
General at all." It says "at all."^
Mr. Gray. That is correct, sir. That is correct, that is my testimony.
I think what the Attorney General is referring to is the conversation
that I had with Jack Hushen, because I did not speak ■
Senator Kennedy. That is not what the letter says. That is why
I say we are going to bring it up again when you say we have been
over it four or five or six times.
Mr. Gray. I didn't know anything about that letter.
Senator Kennedy. That is why I just asked about it. He says he
personally investigated Time's allegations and "contacted the Act-
ing Director of the FBI, Mr. Gray, and former Attorney General
]Mitchell. On February 26, 1973, the same time that Time magazine's
story appeared, I issued a statement categorically denying the allega-
tions in the Time magazine article. Apparently my statement to the
press was pubhshed after your letter to me."
He concludes:
"I would like to reiterate that Time's story has no basis
in fact. During the period of the alleged wiretapping, a search of
the Department's records reflects that neither my predecessor, Mr.
Mitchell, nor I, authorized any electronic surveillance of newsmen, as
reported by Time, nor of any members of the Wliite House staff."
Mr. Gray. That is my testimony, Senator Kennedy. I did not
discuss it with the Attorney General until after the fact. I did report
to him after this day of testimony regarding the questions that were
asked. I chd discuss it with him then, but I did not discuss it with him
prior to coming up here to testify. I talked with Mr. Hushen.
Senator Kennedy. This is dated on March 1, the day of your
testimony. You mean I am supposed to assume from this that the
day he talked to you was after the hearings that afternoon?
91-331—73 25
382
Mr. Gray. Senator, I am-
Senator Kennedy. I am just trying to understand.
Mr. Gray. I am telling you what I testified to. This is the first
time I have seen this letter, the first time I have heard it read, and I
am merely saying what my testimony of record is under oath. The
only possible thing that I think could have happened would be that
the Assistant Attorney General, Internal Security Division, could
have checked with the working people within the FBI. That is the
only thing. I don't understand that letter to mean he discussed it
with me personally, because my recollection, my remembrance, and
my testimony under oath is that I did not discuss it with him at that
time.
Senator Kennedy. You only talked with the Public Information
Officer?
Mr. Gray. Who called me on the telephone; yes, sir.
Senator Kennedy. He was the only one?
Mr. Gray. That is correct, sir.
Senator Kennedy. Now, on the substance of the Time allegation,
you said that you had no basis for belie\dng that the Time story had
any basis in fact; is that coiTect?
Mr. Gray. That is correct, sir. I said I personally checked the
record and that has been my testimony consistently. That is my
testimony today.
Senator Kennedy. And in reviewing the record, at least you said
in response then, your disclaimer referred to the way it was wi'itton.
There is no implication or
Mr. Gray. There is no implication m that at all. I didn't have the
article in front of me and it refers to White House officials and news
reporters.
Senator Kennedy. So no indication should be drawn from that?
Mr. Gray. No, sir.
Senator Kennedy. No qualification?
Mr. Gray. No, sir.
Senator Kennedy. Because in the Attorney General's letter he
also says neither he nor John Mitchell "authorized any electronic
surveillance of newsmen, as reported by Time, nor of any members of
the White House staff." "As reported by Time" appears to be a
qualification in Mr. Kleindienst's letter, but you don't draw any
kind of quaUfication or implication from that?
]Mr. Gray. I don't draw any kind of qualification or implication
from that at all. Senator.
Senator Kennedy. Is it your understanding that the utilization of
existing telephone equipment or switchboards in buildings, or exten-
sions in Government buildings, to intercept conversations would
constitute electronic surveillances which would be covered by title III
and would require a court order or the Attorney General's approval?
Mr. Gray. I don't really know what you are talking about — that
we are tapping our own telephones, is that really the thrust of this
question?
Senator Kennedy. Using extensions without installations of per-
haps an additional device, but monitoring of conversations through
extension phones, for example ; that would even involve switchboards
or
383
Mr. Gray. That practice has never come to my attention. I am
trying to imagine how you do it. Like my secretary could Usten in
on my phone, is that the kind of thing you mean?
Senator Kennedy. I suppose so, or the switchboard, someone
could plug in the switchboard and listen to different conversations
going on.
Mr. Gray. It is really the first indication, the first time I Imre
ever considered that. I have never considered someone would be
doing that on a party line type of thing.
Senator Kennedy. That is possible, isn't it?
Mr. Gray. Oh, it is. Sure it is possible. Y^our secretary can listen
when you are talking.
Senator Kennedy. If the secretary can listen, FBI agents could
listen to conversations?
Mr. Gray. That is correct, but FBI agents do not do that kind of
thing. They have to have a specific order in accordance wirh law
and supported by paper and made a matter of record, and tliat
request must come through the Director's office.
Senator Kennedy. You would be willing to check and
Mr. Gray. No, I am not going to check in that area, Senator. If
there are any grounds for checking, a complaint has to be made. I
am not going to check in that area because I could be on a real wild
chase tr3dng to check on who is listening in on whose party phones.
I don't think that is a proper function for the FBI to be checking.
Senator Kennedy. Those allegations and charges of Time magazine
arc not frivolous and spurious and empty?
Mr. Gray. I don't know. I wouldn't characterize them in any way,
Senator. I have stated what I have done and tliat is ni}' testimom' of
record. That is my testimony under oath. I just don't think it is a
proper function for the FBI to go all around and start trying to ascer-
tain tliroughout the Department who listened in on somebody's
party line telephone or who tapped into a switchboard.
You know, we do a lot of electronic sweeping all the time on these
offices just to make sure that this kind of interception, the creation
of a two-part}^ line out of a one-party line, isn't done. We do that as
a matter of course.
Senator Kennedy. Well, it isn't that extraordinary a procedure, Mr,
Gray. I dare say it is possible that it can be done rather easily and
these charges that were raised in the magazine I think are exceedingly
serious charges. It would certamly appear to me that in reviewing
and investigating these allegations and charges there should be a
complete investigation as to whether there is any possibilit}' this
might have been done. But your testimony is that you do not feel
that those charges or allegations warrant such investigation?
Mr. Gray. I don't feel they warrant this additional step. I have
taken the step that was necessary, checking that very restricted access
material.
Senator Kennedy. You have checked the record and made a phone
call over to the Justice Department and that is the extent of your
investigation, as I understand it.
Mr. Gray. I checked the record, 3-es, sir; and I had two telephone
conversations \vith Mr. Hushen, as I recall.
Senator Kennedy. And that is the extent of your investigation?
384
Mr. Gray. That is right, Senator.
Senator Kennedy. That is the extent?
Mr. Gray. That is correct, Senator Kennedy.
Senator Kennedy. Remember that device that was in the Demo-
cratic Headquarters, on Mr. OUver's phone?
Mr. Gray. I would have to look at the laboratory report on it.
I don't remember the technical description.
Senator Kennedy. It was discussed yesterda}'" that the device was
on Mr. Ohver's phone. It was mentioned that was known or at least
sweDt by the FBI.
Mr. Gray. That is correct, and I believe it was also swept by the
C. & P. Telephone Co., Senator, if my memor}^ is correct.
Senator Kennedy. Do you know what it was doing still on the
phone in September?
Mr. Gray. We didn't find anything there on the phone in June, sir.
Senator Kennedy. It wasn't there in June?
Air. Gray. No, sir. The C. & P. Telephone Co. also reported that
the}^ found nothing. The}" came in there, of course, on June 17, 1972,
and they rejiorted that they found absolutel.y nothing. They dis-
mantled handsets, terminal boxes, speakers, and wiring in the frame-
work to which the incoming trunklines were wired for further dis-
tribution. They found nothing.
Senator Kennedy. Did they look into Mr. Ohver's phone, do you
know specifically?
Mr. Gray. I didn't ask about that specifically, but they stated —
I did ask, "Does this dismantling of handsets mean you actually
dismantled the telephone into which we speak?" and the answer to
that was "Yes."
Senator Kennedy. You don't know just from j-^our report there
whether that included the Oliver phone?
Mr. Gray. No; but I certainly read it to include all handsets in
that particular area.
Senator Kennedy. Could we go to the time when you first heard
about the Watergate affair, Mr. Gray?
Mr. Gray. Yes, sir, that was
Senator Kennedy. You talked about that a bit on your first day
here. I understand you have a chronology of events that you refer to.
You described generally how you first learned about the Watergate
break-in.
Could you just review briefly with us the approximate time when
you first heard about it?
Mr. Gray. Yes; I was in California, as I have previously testified.
I was there to give the commencement address for the law school of
Pepperdine University. I was on my way from Los Angeles to Santa
Ana.
Senator Kennedy. Wliat time did you leave Los Angeles?
Mr. Gray. I left about 9:30, went by automobile, 9:30 a.m.
Senator Kennedy. Did you have any conversations with anyone in
Washington before you left?
Mr. Gray. No, sir, not that I recall.
Senator Kennedy. You didn't have any conversations about the
Watergate affair before you left?
Mr. Gray. No, sir, my records show that the first indications of
calls coming to me were at the times that I have previously testified to.
385
Senator Kennedy. Did you make any phone calls that morning
before you left?
Do the records show?
Mr. Gray. I didn't look to see if I made any phone calls that
morning before I left.
My recollection is that after we got up, I went to Alass with two of
the agents. This I specifically remember because we got lost trying to
walk to Mass and they had to come find us in a Cadillac. Then I came
back and I am almost positive that I made no phone calls. There
would have been no reason to make a phone call, Senator, but I will
have to check so I can testify under oath as to whether or not I did.
I have no recollection of making phone calls.
Senator Kennedy. Could you check that for us?
Mr. Gray. Surely.
Senator Kennedy. Wliether you made any phone calls that
morning, or do you know whether you received any that morning?
Mr. Gray. I am almost certain I did not.
Senator Kennedy. Could you check that?
Mr. Gray. Sure, sure. I will be happy to do that; yes, sir.
[Mr. Graj^ subsequently submitted the following document for the
record :]
Senator Kennedj'^, I have checked my records and I find that no telephone calls
were made or received by me during this time.
Senator Kennedy. So vour first information was sometime around
11, 11:45?
Mr. Gray. The indication was that this information was furnished
to the Los Angeles field division office between 11 and 11:30 a.m. for
transmittal to me.
My earlier testimony was that somewhere between 11 and 11:30
a.m.. Pacific time, as I recall it, I first had an indication that this
information was in from Los Angeles. I did not actually get briefed on
it until after I had completed the commencement ceremony and we
were in the automobile going from Santa Ana over to the Newport Inn
where we were to have a luncheon with the Pepperdine people.
Senator Kennedy. So the first you heard about it was 11:30, 11:45?
Mr. Gray. No; I would say just about noon. I got the first indication
there was a message for me from Los Angeles and it involved a break-
in at the Democratic National Headcjuarters. I was briefed on the
earl}^ information. We were at that time in the automobile going over
to Newport Beach.
Senator Kennedy. That is about 3 o'clock, Washington time; is that
correct?
Mr. Gray. It would be about 1500, 3 o'clock, yes.
Senator Kennedy. Did you ever ask why it took so long for them to
notif}" you?
Mr. Gray. No; I didn't ask because I feel that what they were doing
in this situation was tr3dng to clarify it. The reports as they gradually
came in to me were first, a break-in, then a bombing, then
Senator Kennedy. When did those reports come in?
Mr. Gray. Those reports came in to the FBI in the early morning
hours.
Senator Kennedy. So what time, the early morning hours, 2 or 3 in
the morning?
386
Mr. Gray. No; it was later than that. I am relying on recollection
now that it was somewhere between 4:30 and 6:30. There were two of
them. The notification first came on the burglary and then we were
called down, as I recall it, and three agents went to examine what was
reported to be a bomb in Metropolitan Police District Headquarters
at about 6:30 in the morning.
Then it was later — I wall have to supply the exact time frame for the
record so that the record is complete and accurate, because I am
testifying from memory. I think it is prett}' close to being accurate.
[Mr. Gray subsequently submitted the follomng document for the
record :]
Senator, I have checked the record and the following is a chronologj' of the
early morning reports received by the FBI concerning the burglary, alleged bomb-
ing attempt and the Interception of Communicaticms violation.
Our Washington Field Office (WFO) Dut}' Agent received the initial telephonic
notification from Inspector James Munroe of the Metropolitan Police Depart-
ment (MPD) at about 4:30 am on 6/17/72. This notification was simply of the
brief facts of the burglary then known. The burglary presented a possible Inter-
state Transportation of Stolen Property violation if the value of the stolen
property amounted to $5,000 or more. At approximately 6:30 am on 6/17/72,
MPD detectives in viewing the evidence recovered, thought one of the items
was a bomb or an incendiary device. Shortly thereafter, MPD informed WFO
by telephone that the five men who had been arrested at the Watergate in the
office of Democratic National Headquarters were possibly attempting to place a
bomb in it. The Special Agent in Charge was thereafter advised by WFO Duty
Agent and Agents were dispatched to the Second District Headquarters under
the assumption that an attempted bombing had taken place. When FBI Agents
arrived at the police station between 8:45 am and 9:00 am, they were informed
by the MPD Bomb Squad that the device did not appear to be a bomb as origi-
nally reported. Examination of the device by FBI Agents determined it was ]3art
of what apijeared to be a self-made electronic listening device. This was an imme-
diate indication of a possible violation of the Interception of Communications
statutes, which are wdthin the primary investigative jurisdiction of the FBI.
Senator Kennedy. So that the bomb threat was 6:30 or 7:30 in the
morning?
Mr. Gray. That is mj^ recollection. I could be in error, but I Ihink
it was about that time.
Senator Kennedy. And they didn't feel, at least at headquarters,
that the^rhad to notif}^ you until 3 o'clock in the afternoon, 2:30 in
the afternoon?
Mr. Gi-ay. No, I think I testified that the calls were made earlier
than that: 9:30 a.m. to 10 a.m., Pacific Daylight Time, 12:30 p.m. to
1 p.m. Washington time. "FBI Headquarters called the Los Angeles
-office and furnished them information concerning the Watergate
incident for immediate release to I\Ir. Gra}-."
Senator Kennedy. V^^iat is this you are reading from?
Mr. Gray. I am reading from a summar^^ that I caused to be
prepared.
Senator Kennedy. Of what?
Mr. Gray. Of the telephone calls to and from me, regarding the
particular event we are talking about. I knew I would be asked about
the specific times and I asked that it be prei)ared.
Senator Kennedy. On that phone list there are no calls going out
on Saturday morning and no incoming calls?
Mr. Gray. No, sir. I will have to check to see what I made, if I
made an}- from the hotel.
387
Senator Kennedy. Wh}^^ wouldn't the agent in charge have com-
municated to 3^ou early in the morning that at least something was up?
Mr. Gray. Because they have learned, in dealing with me, that it is
better to have some information to give me. Otherwise what they are
going to get back are 10 to 25 questions. So they like to have a com-
plete report to give me that is going to make some sense. I believe
this is the reason.
I haven't asked them. I just know this from the way I have worked
with them, that I always have a lot of questions.
Senator Kennedy. On an item as hot as this, they don't let you
know right away? They wait until they have a lot of material? They
<lon't let you know?
yir. Gray. I think in this case I see nothing wrong with their
procedure. I read no ulterior motives into it or anything like that, sir.
It was the FBI working as fast as they could work to generate answers.
They needed to develop information that they could transmit to me.
Senator Kennedy. Do you know whether you talked to Mr.
Mitchell that day?
Mr. Gray. I know absolutely and positively and beyond peradven-
ture of doubt that I did not talk to Mr. Mitchell and have not talked
to Mr. Mitchell.
Senator Kennedy. On that Saturday?
Mr. Gray. Absolutel}^, Senator.
Senator Kennedy. Or subsequently?
Mr. Gray. Or subsequently.
Senator Kennedy. The other day, I asked you about Mr. Mardian
and the destruction of certain records in the Committee to Re-Elect
the President, and I tliink that you responded at that time that he
was taking the law3^er-client relation. Do you remember those series?
Mr. Gray. Yes, I remember the exchange between you and me,
Senator Kennedy. Then I filed an insert for the record as you re-
quested, and I expanded upon that and went on to say that we had
no allegations whatsoever at any time that Mr. Mardian had engaged
in any paper destruction activity.
Senator Kennedy. Did you ask him whether he had been there or
whether he had destroyed any material?
Mr. Gray. Senator, you know, at my level I don't ask the questions
and I don't tell the agents what questions to ask. I just don't know.
We have got to rely on the superb trammg of these men to probe
the areas in wliich an individual might be involved.
I specify the general areas when it comes up to me for a decision,
but I don't know. I would have to ask if they asked the specific ques-
tion.
Senator Kennedy. Wouldn't you assume that they would have?
Mr. Gray. I wouldn't make that kind of an assumption because
I am not going to assume any type of question a trained investigator
is going to ask. They have their own ways and means and techniques
of "eliciting information and matching information received from
other sources received
Senator Kennedy. What do you assume an investigator would do
if there is an allegation or charge, that they have been informed of,
about a housecleaning where records were destroyed by Mr. Mardian
and Mr. La Rue. They talk about destruction of records. Weren't
your people trained to ask about
388
Mr. Gray. Of course, they are trained. But there were no alle-
gations to the effect that Mardian and La Rue were involved in it.
We interviewed, roughly, about 60 people over there at that com-
mittee.
Senator Kennedy. What is your
Mr. Gray. We didn't get any allegations that Mardian and La Rue
were involved in the destruction of records.
Senator Kennedy. What do you mean, involved? Directed it, or
knew about it? During your investigation, did they acknowledge
knowmg about it?
Mr. Gray. I would have to ask. The information that I have here
is that we in.terviewed about 60 people at the committee, mcluding
Mardian and La Rue. And the only jjositive iniormation relative to
the destruction of records is that which was set forth in some of those
confidential interviews — but without pinpointing the individuals with
any specificity.
Senator Kennedy. In your remarks you said those questioned
mcluded, and then you give 12 or 14 names. Do you remember the
memorandum that was provided?
\h\ Gray. You said people interviewed at the White House,
Senator?
Senator Kennedy. Yes, sir. You have indicated Magruder, Porter^
Stans, Sloan, Barrick, Nunn, Sail}' Harmon}^, Judith Hoback, Robert
Odie, Robert Houston, Panarites, Gleason and Duncan. Those are
the names.
Do you remember those?
Mr. Gray. Yes, sir. Those are the people we interviewed at the
Committee To Re-Elect the President.
Senator Kennedy. Wliat about Mardian and La Rue?
Mr. Gray. We interviewed Mr. Mardian and Mr. La Rue.
Senator Kennedy. About this allegation?
Mr. Gray. I cannot testify under oath that we specifically asked
them that particular question. That I am going to have to ascertain
for you and supply it for the record.
I can't testify to the questions. There are over 2,300 people we
interviewed, and no Director of the FBI or any criminal or intelligence
service in the world. Senator Kennedy, kno\\'s specifically what an
agent asks on an interview. I just do not know.
The Chairman. How many agents did you have working on this?
Mr. Gray. Over 300; 340 to 350 agents workmg on this case.
Senator Kennedy. Actually, you have answered that. At page 298
[of the typewritten transcript], you said: "I would like to state that
Mr. Mardian was not questioned concerning what records existed
prior to A])ril 1972 nor was he questioned concernmg any destruction
of records. The investigation did not develop any allegation that
Mardian had been mvolved in the destruction of records." And yet
the Washington Post story clearly accuses Mardian of this.
Mr. Gray. Senator, I stated we interviewed 60 i)eople. We had no
indication of this. I am not gomg to start all ov^er again and do the
Watergate agam. Nearly all the Committee To Re-Elect the President
people testified before the Federal grand jury. I don't know how many
of them testified at the trial, but this is something about which I am
just not going to gear up the FBI every time somebody writes some-
thing in the newspaper.
389
Senator Kennedy. Well, it was a pretty serious charge, was it not,
Mr. Gray?
Mr. Gray. Not in view of the fact that we had already interviewed
60 people.
Senator Kennedy. The charge, the allegation talks just about Mr.
Mardian and Mr. La Rue; and those two were not questioned about
it?
yir. Gray. We did plenty of questionuig there and we didn't
have any leads at all about their involvement in this questionmg.
Senator Kennedy. The newspaper allegation was that they were
mvolved ; that they did preside over the destruction of it, and that is
all I am questioning. You are saying that the FBI mtervicAved 60
people but didn't interview the two that were
Mr. Gray. We did interview those two, but I don't know if that
specific question was asked.
The Chairman. Your testimony has been all the time that you
did interview Mardian and you did interview La Rue?
Mr. Gray. It has consistently been that, Mr. Chahman, yes.
Senator Kennedy. But not about
The Chairman. So you have a charge in the newspaper, but you
have your investigation on the other side?
Mr. Gray. That is the way I look at it, Mr. Chairman.
Senator Kennedy. But, Mr. Gray, as I understand your testimony,
you investigated whether there was a destruction of records prior to
April 7, but you never asked any questions about the destruction of
anv of the materials that might have been in the CRP files?
}^lr. Gray. I believe that we did but I will have to check the record
on that. My recollection is that we did. We investigated both series,
pivoting about the date of April 7, Senator.
Senator Kennedy. Could you do that?
^Ir. Gray. Yes, sh.
Senator Kennedy. Could you find that out, because that was
not covered; and that is part of the allegations m the newspapers,
that there was material that w'as destroyed. I think the newspapers
have also suggested that the results of some of the AAiretap material
had been destroyed as well. I am trying to find out w^hether your
investigation of that consisted only of whether they destroyed the
financial records prior to April 7, or whether you got into the other
material, and what that response was?
Mr. Gray. Yes, sir, I will check the record and supply a full
answer to that question.
[Mr. Gray subsequently submitted the followmg document for
the record:]
After checking, I find that there are two situations in which records at the
Committee to Reelect the President were allegedly destroyed. The first of these
relates to financial records of contributions before April 7, 1972, when the new
Disclosure Act took effect. The second involved alleged destruction of records at
the Committee offices after the arrests of the five men at the Democratic Head-
quarters on June 17, 1972. Our Agents contacted a number of people at the Com-
mittee concerning these points, and during the Federal grand jury inquiry a
number of people were also questioned concerning the records destruction. Those
questioned included Jeb Magruder, Herbert Porter, Maurice Stans, Hugh Sloan,
Paul Barrick, Lee Nunn, Sally Harmony, Judith Hoback, Robert Odle, Robert
Houston, Sylvia Panarites, Millicent Gleason and Martha Duncan.
The responses to these inquiries involve the substance of the Watergate in-
vestigative file, which is already available to the Senator, as well as grand jury
testimony, which I am not at liberty to place in the public record.
390
Senator Burdick. \ir. Chairman, I have a few short questions at
this time.
Mr. Gray, I have been involved in other hearings and have not heard
all your testimony. Therefore, my questions may be a little bit rep-
titious. I hope not.
Mr. Gray. I will be happy to try to answer.
Senator Burdick. Last year, we held hearings on the confirmation
of Mr. Kleindienst and the Dita Beard memorandum became the
center of controversy. The chairman of the committee sent the
memorandum to the Federal Bureau of Investigation for an examina-
tion. Is that correct?
Mr. Gray. I believe it is correct to say that it was deUvered to the
FBI. I would have to check whether it was the FBI or the Department
of Justice, but I beheve it would be FBI.
(Mr. Gray subsequently submitted the following document for the
record :)
I believe that the Dita Beard memorandum was delivered to the Justice De-
partment for transmittal to the FBI. This is my best recollection.
Senator Burdick. At that time you were the Acting Attorney
General?
Mr. Gray. I was the — Senator, I was the Assistant Attorney
General in charge of the Civil Division and the Deputy Attorney
General designate. I think your question is directed to whether or not
I was at that time acting with regard to decisions concerning papers
to be delivered to this committee?
Senator Burdick. That is correct.
Mr. Gray. I think that occurred about March 17, somewhere in
that period of time, because March 17 is the date on which I signed the
first letter to this committee.
Senator Burdick. As I recall, your testimony was that the Dita
Beard memorandum was dehvered by someone to Mr. Dean, attorney
for the President?
Mr. Gray. Yes, sir; Mr. Dean caUed me and asked me if this could
be made available to him. And I made it available to him.
Senator Burdick. Then, thereafter, that memorandum found its
way into the hands of the ITT Corp.?
Mr. Gray. That I don't know as a fact. I still don't know it as a
fact. On page 804 of the confirmation hearings Mr. Abell testified
the ITT had that memorandum.
Senator Burdick. Then when we come down to this year, we find
that a raw interview of Mr. Segretti was also delivered to Mr. Dean,
the President's attorney?
Mr. Gray. It was among those. Senator Burdick, that I previously
testified I did deliver to Mr. Dean in his capacity, his ofificial capacity,
as counsel to the President in conducting the investigation.
Senator Burdick. That is the same Mr. Dean?
Mr. Gray. Yes, sir; that is the same Mr. Dean.
Senator Burdick. Does the record establish that that raw interview
wound up in Mr. Segretti's hands later on?
Mr. Gray. No, sir; it does not establish that. I think this is with
reference perhaps, Senator Burdick, to the newspaper stories concern-
ing the affidavit that he was sho^vn his FBI interview forms, including
one conducted just 24 hours before. We only inter \de wed Mr, Segretti
391
on June 26, June 28, and showed him a picture on June 30. So we had
no interview 24 hours before this particular date.
Senator Burdick. In other words, in these several days of hearings
it has not been estabhshed by direct evidence that Mr. Segretti got
a copy of his own interview?
Mr. Gray. No, sir; I think not.
Senator Burdick. Now, let us get to a policy question. Is there any
hmitation upon a request by an attorney for all the information he
wishes from you?
Mr. Gray. Yes, sir; there are limitations.
Senator Burdick. ^Vliat are they?
Mr. Gray. Those limitations I sought to set out in earlier testi-
mony, but I will try to do it again. Senator Burdick.
In every instance, such as this, where it is a major case special, I
inquire into the reasons. Even on other occasions when requests are
made for information, I inquire into the reasons, and I make a judg-
ment as to whether or not this information should be pro^dded — not
only on the basis of law but also the ethical and moral considerations
involved.
Those considerations have occurred prior to this time. Wlien some
of these do occur, there are times when I may very well say, "No."
I don't know whether they are going to occur but if they do and when
they do, I am going to say "No." I am going to have to say "No."
I testified at great length, in response to Senator Tunney's questions,
on how I feel about this. I feel pretty strongly about it, I feel very
strongly about it.
Senator Burdick. If in fact the Dita Beard memorandum did find
its way into the hands of the ITT after being examined by the FBI,
and if in fact the raw interview of Mr. Segretti did find its way into
his hands, would not those facts be rather disturbing to you?
Mr. Gray. They would.
I have characterized the latter as a grievous error. I think I said
serious or most grievous breach of trust to the President, who has
entrusted this man with the responsibility of conducting an investiga-
tion for the President. But I have no evidence whatever that this oc-
curred. I have evidence in the story itself that, at least, it didn't occur
as the story related. That is obvious on the face. Senator Burdick. It
just didn't occur.
But to answer your question, it would be a breach of trust, there
would be no question about it.
Senator Burdick. Thank you, Mr. Chairman.
Senator Mathias. Would the Senator yield for a moment to pursue
that?
Mr. Gray has referred to a breach of trust. On whose part?
Mr. Gray On whose part, sir?
Senator Mathias. Yes.
Mr. Gray. If it were used improperly like that, I would say on the
part of the individual to whom I gave the document.
Senator Mathias. Who was who?
Mr. Gray. Mr. Dean. It was not sometliing I would have expected
him to do.
Senator Cook. Mr. Gray, may I inquire just a moment, because you
have nothing specific to point to that Mr. Dean, or anybody in fact,
made these documents available to anyone else; is that not correct?
392
Mr. Gkay. That is correct, Senator.
In connection with the Dita Beard memorandum, I have stated
under oath here several times that I beheve the intent of the committee
was to get to the authenticity of that document and I have said if Mr.
Dean took that additional step, which I don't know that he did, he
was seeking to determine the authenticity of that document.
I also stated that the FBI had delivered a report to this committee
stating that the document was possibly authentic.
In that particular case, I don't think that this committee would have
turned do^vn the information that would have been developed as a
result of an alleged examination of that document by ITT, which I
know now to be a fact from Mr. Abell's testimonv of which I was re-
minded vesterday.
Senator Cook. This could be an in-house problem, because we read
quite frequenth^, particularly in Mr. Anderson's columns, information
relative to the FBI where he gives file numbers and statistics and
facts within files. So this could be an in-house problem as well as a
White House problem.
Mr. Gray. No question about it. Senator Cook.
I have said, and I think even we in the FBI feel that somehow some
of our materials are ending up in hands not entitled to receive them.
We don't know. We try to run it do\\ai.
We don't try every time, of course. I have testified to this under
oath, that we don't try ever}^ time and we don't like to discuss the
methods that we are using to endeavor to run do^vn the leaks of
information which do occur.
Now, some of these other papers could come from the media,
burglary, and from other files of Government agencies here in Wash-
ington who receive documents from us with our caveats on them.
I have said that during my administration, I have tightened up on
the dissemination of all documents and we are sending only one to
some of the agencies that had previously been accustomed to getting
many copies.
As to the Dita Beard memorandum, I think what we were searching
for there was truth.
As to the Segretti matter, I have no way of knowing that. I con-
sider if documents were made available to Mr. Segretti, it .was a
breach of trust.
Senator Cook. Thank you, Mr. Gray.
[A brief recess was taken.]
Senator Kennedy. The committee will come to oider.
I regret the interruptions, Mr. Gray.
I am tr3dng to chair a health hearing, so I apologize for coming in
and out.
I just have a few fuial points that I would like to discuss \vith you
this morning.
We were talkmg about the investigation of the Mardian-La Rue
allegations from a front page Washington Post article about the
destruction of various materials ovei at the Committee to Reelect
the President, and in the past wdien you have seen other kinds of
allegations about information, you have been willing to pursue it or
at least try and follow up.
I mean the allegations that Mrs. Martha Mitchell did something
and you outlined or reviewed what you did about that, talked to
Mr. Mitchell and had some reservations about moving ahead.
393
But just from the fact that these appear in the newspaper, you
have responded at times in following up on these allegations or
reported charges, and here is a very serious allegation or charge that,
as you have recognized even in your own submissions, could be
unlawful.
In further response to a question that came earlier, you indicated
that "Mr. Mitchell advised us," I am reading from the insert response
you supplied:
"In addition, Mr. Mitchell advised us on July 5, 1972, that Mr.
Mardian was v/ith him in a political meetuig in California from Jiuie
16 through June 20, 1972. Liddy's alleged destruction of records took
place on June 17, 1972.
"In addition, \lr. La Rue was not interviewed regarding the de-
struction of records as there was no allegation that he had any such
information."
Of course, those allegations were made that the destruction came
after that?
Mr. Gray. That is correct, su'. But what I would do, I wouldn't
launch an investigation. I would set forth a series of questions to the
effect: Did we cover this? What d(^ we know about this? What oc-
curred? That kind of thing.
This was done in those cases, you know, to make certain that
we did cover them.
I didn't do that with every single newspaper article that came out
because there were far too many of them, Senator.
Senator Kennedy. Did you do it in this c;ise?
Mr. Gray. I have already supplied an insert for the record which
I think — I didn't know at the time you were questioning me — that
goes right to this point. It is the insert that I believe you are reading
from.
Senator Kennedy. Liddy's alleged destruction took place on the
17th. June 19 was the alleged destruction invohdng Mardian and
La Rue.
Mr. Gray. I am basing not on what is in the newspapers, Senator
Kemietly. I am basing our statement to you on what we have in our
records. That is what I have got. I have to stick with that; that is
all I have. That is my bedrock.
Senator Kennedy. What is your bedrock?
]Mr. Gray. \lj investigation, the investigation of the Federal
Bureau of Investigation.
Senator Kennedy. And what did the bedrock show, that there
was destruction of the records on the 17th and therefore
Mr. Gray. There were allegations that there had been records
destroyed prior to that pivotal date of April 7. There were allegations
that there were records that had been destroyed after that pivotal
date. We tried to find out about this in the conduct of our iuAestiga-
tion, and we did question some 60 individuals over there.
I am not going to testify under oath that each and every one of
them was asked that specific question, but we did get this kind of
information.
We did look into it. We tried to ascertain whether it was true or
not, and we delivered the information we obtained to the assistant
U.S. attorney who, I am sure, used that at the Federal grand jury.
But I don't have all that grand jury testimony.
394
Senator Kennedy. Your testimony as I understand it, is that you
never asked Mardian or La Rue about the destruction
jMr. Gray. I don't know. I said I would have to go back to ascertain
whether or not we asked these specific questions of these two men,
and put that insert into the record.
This is the way I understand your question.
Senator Kennedy. The allegations on the front page of the news-
paper allege this, and what I was trying to find out is whether jou
investigated it.
You have given a response that there Vv^ere questions asked about
the destruction of records prior to April 7.
Air. Gray. We asked questions after April 7, too, that I am sure.
What I am not sure of, and I can't answer with that degree of speci-
ficity which is required here, is whether the agents who interviewed
Mr. Mardian and Mr. La Rue asked them that specific cjuestion.
That is what I can't testify to because I don't have the memory of it.
Senator Kennedy. As a matter of fact, I think we have that jou
indicated on the earlier insert that: "Mr. Mardian was not questioned
concerning what records existed prior to April 1972, nor was he ques-
tioned concerning any destructic^ of records. The investigation did
not develop an}- allegation that Mr. Mardian had been involved in
the destruction of records."
Mr. Gray. If that is our insert that is what our records ^\-ill show,
but I am going to check that again for you. Senator Ivennedy.
[Mr. Gray subsequenth- submitted the follo^\^-ng document for the
record :]
Senator, at this time I would like to state that Mr. Mardian and Mr. LaRue
were not questioned concerning what records existed prior to April 7, 1972, nor
were they questioned concerning any destruction of records. The investigation
did not develop anj^ allegation that Mr. Mardian and Mr. LaRue had been
involved in the destruction of records.
Senator Kennedy. Is tlie FBI involved in any way in the investi-
gation of the ITT affair?
Mr. Gray. Now? At the present time, sir?
Senator Kennedy. Let us take the present time.
Mr. Gray. We have been in the case with regard to the submission
from the committee to the Department of Justice concerning the in-
vestigation relative to perjury or obstruction of justice which I am
advised came over to us on December 5. The investigation is ongoing
and is nearly complete.
Senator Kennedy. I see.
When do you expect that that will be completed?
Air. Gray. We have, I think, four more interviews to go on that.
Senator Kennedy. Was one of the interviews in this investigation
with Dita Beard?
Mr. Gray. I know nothing about that investigation at all, but I
believe one of the interviewees was Mrs. Beard. I believe she had some
kind of illness or something like that, at the time we were interrogating
her.
Senator Kennedy, Well, you know well enough about that inter-
view, don't you?
Mr. Gray. No, sir; I will be absolutely honest with you. The first
time I inquired about this investigation, believe me, Senator Kennedy,
395
was vesterdaA^ I was briefed this morning in the automobile coming
over here. That is the straight answer. The people who briefed me are
fitting right here mth me.
Senator Kennedy. Was the interview mth Dita Beard — was it
written up in the newspapers?
Mr. Gray. I saw it in the newspaper. I saw it.
Senator Kennedy. Wlien you saw it, you knew that the inA^^estiga-
tion was taking place of these obstructions of justice or perjury
charges?
Mr. Gray. Well, I had to conclude that but I have not talked to
anyone about that investigation. As a matter of fact, I did not even
remember that I had read that stor}^ about Dita Beard, but when we
discussed it last evening, and in the car coming over here today, I did
remember it.
Senator Kennedy. But you knew there was an investigation taking
place?
^ir. Gray. I didn't know until yesterday.
Senator Kennedy. You mean you did not know the FBI was
investigating?
Mr. Gray. No, sir; I did not, because I don't know about every
investigation we have got going.
Senator Kennedy. Wlio does?
-\[r. Gray. We have some 800,000 investigations going.
Senator Kennedy. You think that a request by the Senate of the
United States to review a matter as important and significant as ITT
in regard to perjury and obstruction of justice, an investigation con-
ducted by the FBI, and you wouldn't know that was taking place
A\dthin the Department?
Mr. QfRAY. I knew that submission was made \\dthin the Depart-
ment, but what I didn't know was that the Department had submitted
it to us.
It is the Avay we operate. We have very capable and trained people
do\ATi there. I don't know every single investigation that is going on in
the Federal Bureau of Investigation.
Senator Kennedy. Is this "every single investigation," the in-
vestigation of the ITT, after request by the Senate of the United
vStates? Is this routine? Is this one of the umteen thousand?
Mr. Gray. If I knew it, then I might be criticized that I might be
tampering with this one.
Senator Kennedy. Wliy do jon say that?
Mr. Gray. Because there have been all the questions to date.
No; I say this has been handled in the regular way, in keeping with
the FBI's procedures, and they don't bring every one of those to me.
At this particular time, I am reminded that I was in Connecticut
following my operation for an intestinal obstruction. Even though I
had my executive assistant there \vith me after the operation, and I
was working on Bureau papers, I was not informed until last night.
I don't view this as a grievous error. It might be a good idea. I can be
criticized either way, so we'll play it that way.
The Chairman. You were in the hospital when it was submitted?
Mr. Gray. Yes, sir; vdien it come over from the Department of
Justice.
Senator Kennedy. Why would you have thought it would have
been a good idea to perhaps stay out of it?
393
Mr. Geay. I don't think it would have been a good idea. T am just
telhng you that this is the way it happened and I haven't had
this information. I don't sav at all that it would have been a good
idea and I wouldn't want mv testimony
Senator Kennedy. How extensive — is this one of the major investi-
gations by the Department?
Mr. Gray. I would say it is probably a very important investiga-
tion; yes.
Senator Kennedy. Can you think of some that are more important
now?
Mr. Gray. There are all kinds of investigations and I can think of
plent}' that are more imoortant; yes, sir.
Senator Kennedy. Outside national security, are there any that
are more important?
Mr. Gray. Similar types. We liave some very sensitive ones going
on in the field of organized crime and I am not going to discuss those.
Senator Kennedy. I am not asking you to discuss those.
I think the whole affair took a great deal of time, the many allega-
tions and charges, and at least this committee, when it asked the
Department of Justice to pursue it, thought this was a matter of very
significant importance, and it quite frankly surprises me that vou
are not only not up-to-date od the particular details of the investiga-
tion but that you did not even have knowledge that it was — —
Mr. Gray. The main thing to be said in connection \vith that
investigation is this: had they needed a policy decision or direction or
guidance or some intervention on mv part, I would have kno^\■n about
it-
Senator Kennedy. Let me ask you, Mr. Gray: Do you think that
perhaps at least some of the consideration might have been ^^ feeling
within the Department that because of your presence in the Justice
Department during this period of time, they felt they didn't want to
put you in a more difficult ])osition?
\ir. Gray. No; I don't think I am in a difficult position at ail. I
have a duty to do as Director of the FBI, and I will do it. Senator
Kennedy. I don't think that thought ever entered their minds. I
would hope it didn't.
Senator Kennedy. You know a good many of these gentlemen w?
have talked about during the course of these hearings: Mr. Dean,
Mr. Mardian, Mr. La Rue, and many of the others?
Mr. Gray. No; I would like to be specific because I don't know them
all. I don't have that kind of connection. A great many of these men,
Senator Kennedy, I previously testified that I met when I came here
to Washington at HEW to work with Bob Finch.
Senator Kennedy. That is how many years ago?
Mr. Gray. 1969, in January, when I came, and I met them for the
first time then.
Senator Kennedy. Well, then, you are famihar A^dth them?
Mr. Gray. I know who they are', but 1 didn't have too much|time to
get too familiar with anybody in that year in HEW. The records will
show I worked there 6:30 in the morning to 9 or 10 at night every
single day and that is known at HEW. There are plenty of i>eople who
would testify to that fact. I didn't even leave that place for lunch.
397
That is how busy I was. I wasn't doing any sociahzing-. Whatever
contact I had \\dth them would be telephonic contact or they woukl be
coming into my office, but I don't have that kind of a close relationship
vnih those men and they would be the first to agree.
Senator Kennedy. Obviously, there has been general speculation
again in some newspapers that this has really placed 3'ou almost in an
impossible position in terms of doing the kind of work and job that you
would be called on to do, despite the association or knowledge or work
relationship that you had with many of these men. yet if you didn't do
it because of the appearance of either those associations or relation-
ships that would put an unfair burden upon you.
1 know you feel and commented here this morning that you didn't
have any kind of j^roblems as far as your own kind of ]:)ersonal willing-
ness and desire to follow this proceeding.
Can you understand that sense of concern that others might have
about having you investigate people whom you had this working
relationship with, are knowledgeable of and friends mth over a period
of a number of years?
Air. Gray. Yes; indeed.
Senator Kennedy. So to speak, have served in the trenches with.
Should people be concerned about that? Do you understand this con-
cern?
Mr. Gray. Yes; indeed. I understand the concern, Senator Kennedy,
I think it is a valid concern. But they are not people with whom I
served in the trenches. I am not trying to disavow knowledge or per-
sonal acquaintance, but it is really not that close a relationship. Bob
Finch, Chuck Lichenstein, and Agnes Waldron were about the only
people at HEW I knew. I can't recall that there was anyone else o\'er
there I knew. In the White House, there were John Erhhchman and
Bob Haldeman and John Whitaker. Those people I knew from the 1960
campaign. I didn't have any contact with them in the interim.
But I can understand the concern. I don't think this is the first tinje
in the history of our government that this kind of a situation has
occurred, where people have been placed either in Cabinet officer
positions or Bureau Chief positions. We have been able to operate this
government because this government rehes on people doing their job.
If we begin to beheve that people can't do their job, our institutions
are in real trouble — and those of us who are in these jobs have got to
contribute all we can so as not to default.
I view a default on the part of leadership as far more serious than
some of the really major crimes that are committed today because
that default in leadership can hurt this society grievously.
I appreciate your concern, and I do think it is a valid concern. But I
think that it can be overcome, and we have been overcoming it, sir,
in our Government for many years.
Senator Kennedy. But it is the first time that has taken place in the
FBI, isn't it?
Mr. Gray. Oh, no question, this is the first time. But not in the
Department of Justice. There have been many Attorneys General
in the Department of Justice who had political connections.
Senator Kennedy. I know of some.
Mr. Gray. These men are going to go in there and do a cracker-
jack job.
91-331—73 26
398
vSenator Kennedy. You are getting to me.
Thank you, Mr. Gray.
The Chairman. We wih recess now to 2:15.
[Whereupon, at 12:15 p.m., the committee recessed to 2:15 p.m.]
afternoon session
The Chairman. The committee will come to order.
Mr. John T. EUiff.
Stand up, sir.
[The witness was sworn.]
Senator Hruska. Mr. Elliff, you have filed a copy of your state-
ment A\dth the committee. You may either read it or highhght it
as you ^\^sh. Proceed in your own fashion, please.
TESTIMONY OF JOHN ELLIFF, DEPAETMENT OF POLITICS,
BRANDEIS TJNIVEESITY, WALTHAM, MASS.
Mr. Elliff. Thank 3^ou very much, Senator Hruska.
I msh to thank you for gi^^ng me this opportunity to discuss the
nomination of L. Patrick Gray as Director of the Federal Bureau of
Investigation.
I am currently an assistant professor in the De])artment of Politics
at Brandeis University, Waltham, Mass. I outline in my statement
some of the work that I have done in this respect.
Since 1966 I have conducted research on various aspects of the Department of
Justice and the FBI. These studies have been based on interviews with past and
present officials and examination of historical documents and public records. As a
research fellow at the Brookings Institution in 1966 I was given limited access to
Justice Department archives by Attorney General Katzenbach. In 1971 then
Deputy Attorney General Kleindienst arranged interviews for me with execu-
tives o'f the Department and the FBI. My findings have been published in a study
of the FBI and civil rights enforcement and in a book on the Justice Department
in the 1960's. In addition, I presented a paper on FBI data collection to a con-
ference on the FBI sponsored by the Committee for Public Justice at Princeton
University. Subsequently, I participated in another conference on the FBI
organized" by Americans for Effective Law Enforcement and contributed recom-
mendations on the FBI and domestic intelligence to the Democratic Policy Coun-
cil's Planning Group on InteUigence and Security, chaired by Senator Adlai
Stevenson III.
I don't know that I know very much about the FBI, but I have
attempted, as a political scientist, to study both the Justice Depart-
ment and the Bureau and to try and draw some generalizations from
the data that is available in p^ubhc; and also I have had a unique
opportunity, under both the administrations of Attorney General
Katzenbach and Attorney General Mitchell, to conduct interviews
with officials of the Department of Justice and the FBI.
In order to evaluate adequately the qualifications of L. Patrick
Grav for the position of FBI Director, I believe that this committee
ought to examine very carefully both the FBI as an institution and
the office of FBI Du-ector itself. The nommation of a permanent
Du-ector for the FBI pro\ades a truly unique opportunity for this
committee to undertake congressional oversight of the FBI and to
examine what Senator Hart referred to on the first day of these hear-
ings as the structure and pohcies of the Bureau. So that this com-
mittee and the Senate can more fully understand the nature of the
399
choice that they must make, I have asked to be allowed to present
some of the results of m^- studies of the FBI and to relate those studies
to some of the material that has recently come to light about the FBI
and about its particular practices, even during these hearmgs.
The scrutiny that Congress should undertake with regard to the
FBI ought to evaluate the Bureau against the overall norms of the
Constitution. If fault is to be found it should not be sought in the
Bureau or its former or current or potential Director, but in the long
line of past_ Attorneys General and Presidents and even Congresses
who have given power and responsibility to the FBI, but who have
failed to establish adequate controls.
Former Attorney General Francis Bid die was very concerned about
this. I once had an opportunity to discuss this before his death with
him. He wrote in his autobiography that the FBI Director has been
given "immense authority." He believed this delegation of authority
to J. Edgar Hoover was "justifiable by the record." But he raised a
disturbing question about
the fiitui-e of this great machine of detection, with its 10 million personal files,
its reputation grown sacrosanct ... its obvious possibiUties of misusing the
power it has won.
^Vlien Hoover is gone, Biddle asked,
wl:iat will happen — can the same freedom be given to another man, the virtual
freedom from control? I do not believe it can.
Thus the time is now ripe for sustained reasoned dialog about
the proper investigative and domestic intelligence requirements of
the executive branch and the appropriate means for supervising FBI
operations.
There is another reason why this committee has a special oppor-
tunity to exercise oversight. As Director-designate, Patrick Gray
can reply to your questions with the knowledge he has gained over
the past 9 months. In a sense he will have served as an agent of the
Congress in making his examination of the Bureau's functions during
that })eriod. He brought in his o^^ n small personal staff, unencumbered
by experiences of the past within the organization. And he created a
planriing and evaluation agency within the FBI, headed by a new
Assistant Director. Thus Mr. Gray should be in a position to discuss
in detail the FBI's operations and his plans for the futiu'e.
Indeed, he has invited the committee to do this. In his opening
statement he has placed two appendixes: Appendix A of Mr. Gray's
opening statement outlines the areas of inquiry that he laid out before
himself when he took otHce as Acting Director, last May, and appendix
D in his opening statement reviews a great many changes that he
has made in the operations of the FBI over this period. By presenting
this material to the committee, Mr. Gray is offering this committee
the opportunity to question him about the results of his own exam-
ination of FBI functions, his own evaluation of the problems that
might exist or improvements that might be made in the Bureau; and
he has outlined some of the steps that he has taken, which I think
this committee and the Senate as a whole ought to familiarize itself
^yiih. so it can know what the record of L. Patrick Gray during these
past 9 months as Acting Director has been.
Some of this material has been made public on various occasions
during the past 9 months. Mr. Gray has either directly in interviews
400
with newsmen or indirectly through stories that have appeared in the
newspapers revealed some of the changes that he has made. But it seems
to me it would be c]^uite important to review with him these changes,
to understand how he thinks about the Bureau so that both the Senate
and the American people can understand what Pat Gray will mean as
permanent FBI director.
1. AN OVERVIEW OF THE ISSUES
I would like fu'st to suggest some of the issues that do come up in
any attempt to understand the FBI. The FBI is a })owerful and com-
plex institution, combining as it does both criminal law enforcement
work and internal security intelligence functions. Yet few other in-
stitutions of com])arable importance in the American political system
have been so completely ignored hy scholars and students of govern-
ment. Consequently, major changes in the FBI's missions and methods
are not fully understood, and new disclosures about the Bureau are
often distorted because they enter an analytical vacuum. The Con-
gress bears considerable responsibility for such misunderstanding
since its committees have not previously examined FBI policies in
depth or detail. Instead, fragmentary news stories, second hand
accounts, documents taken out of context and unverified charges
frequently produce more confusion than enlightenment. As former
Special Agent Jack Shaw has written:
Manj^ critics just don't possess eiiouc'i mtv^Tial ^'a^ts a'"<:)iit Bu-eau ;;olic!cs
to critique tliem effectively or argue intelligently and thus resort lu inv-eclive or
vilification.
In recent years thoughtful FBI executives have themselves been
aware that their assignments are widely misinterpreted. During the
1960's the FBI confronted new problems, difficult to define in a way
that woidd secure general acce})tance for its response. Bureau execu-
tives became concerned that increasing doubts about its legitimacy
might result in less public cooperation, to the detriment of its opera-
tions. After the publication of stolen FBI documents in 1971, Attorney
General John Mitchell acknowledged a need for better public imder-
standing of the FBI's standards, so that the American people would
not feel the}^ were "being disturbed by Government activities." Yet
no such clarification occurred and misgivings continue to grow.
Responsible FBI officials have seen another, perhaps more funda-
mental, issue emerging. The FBI is in large part an arm of the Presi-
dency. The primary foundation for the Bureau's domestic intelligence
role is inherent executive power. Later on m}^ statement will go into
this in greater detail. I have undertaken to analyze the source of au-
thority for the Bureau's domestic intelligence activities. I have
examined the records in the Roosevelt Library and attempted to re-
view the Bureau's own statements in which it sets forth ^\'hat its
authority is. Only very recently, though, have Congress and the courts
begun to explore the ramifications of this inherent executive power
basis. Disregarded for decades, this overall question should now be
seriously considered. Should the President direct an agency to conduct
intelligence operations without explicit authorization from the Con-
gress?
401
There has been other criticism of the FBI i^rior to Mr. Gray's
taking office, criticism suggesting that the Bureau was hampered bA"
bureaucratic rigidity and "misplaced priorities. After retiring from the
FBI in 1971, former Assistant to the Director WilHam C. SulUvan
condemned the Bureau for "fossiUzed bureaucratic traditions and
obsolete i:)olicies."
Other members of the national intelligence community claim that
the FBI has done a poor job in dealing with foreign agents in this
country because of its orientation as a criminal investigative agency.
Special agents trained in criminal procedures mny fail to grasp "the
subtleties of intelligence work."
In recent weeks there has been more evidence of this problem. It
was ii.sclooC.l tL..t Ncv; York City and its police department had
turned, not to the FBI, but to the Central Intelligence Agency for
advice on improving intelligence capabilities. I think a\ e should ponder
the reasons why the Central Intelligence Agency, which is bj^ statute
barred from exercising any internal security functions in the United
States, was the agency called upon to help the New York City Police
Department reorganize its data maintenance facilities. Indeed, the
CIA provided advice which apparentl}- made it possible for the New
York City Police Department to eliminate 80 percent of the informa-
tion that they had in their intelligence files. Apparently the FBI was
not in a position to provide assistance of this sort.
So there are problems regarding the operational quality of the FBI,
and, of course, equally serious charges come from civil libertarians
who express apprehension that overzealous FBI activitv may involve
unacceptable invasions of privacy and have an intimidating impact on
political freedoms. They question the Bureau's power to label groups
publicly as "subversive" or "extremist," to infiltrate such groups for
the purpose of fragmenting and destroying them, and to maintain
special surveillance files on every suspected "subversive'' or "ex-
tremist" individual covering his activities, beliefs, and associations.
In fact, if I might add here, the special staff study done by Senator
Ervin's Subcommittee on Constitutional Rights and pubHshed this
past summer entitled "Army Surveillance of Civilians: A Documentary
Analysis," concludes that the Army's surveillance files were composed
of from 20 to 60 percent FBI material. The criticism that has been
made of much of the contents of Army surveillance files could also be
directed, insofar as it suggests that they are unnecessary for any
purpose whatever, at the FBI which served as the source of a consider-
able amount of this information maintained by the Army.
In addition, other committees of Congress have been concerned
about the FBI's collection and nationwide dissemination of criminal
historA data, especially the development of the computerized facihties
of the' National Crime Information Center. This has provoked heated
controversy, a controversy that has illustrated the weak statutory
foundation for FBI activities. The courts found recently that the
Bureau's authority to disseminate arrest records m certain cases was
not adequately founded on statutory authority. It was thus necessary
to pass new legislation to authorize what had been insufficiently
authorized programs of the FBI.
402
Finally, in the area of civil liberties, the recent disclosure that the
Bureau prepared special memoranda summarizing everything in its
files about each newly elected Congressman, Senator, and Governor is
only one in a startling series of revelations about previously secret
FBI practices.
In giving an overview of the issues, there is one more ver^' delicate
matter, and that is the fact that Congress has made no attempt to
define or even explore in great detail the relationship between the FBI
and the Department of Justice. Although responsibility for the FBI's
overall assignments rests with the Attorney General — as Mr. Gra^'
has acknowledged — neither the Attorney General nor his subordinates
have exercised administrative supervision over the Bureau's internal
regulations. Occasionalh', experienced Justice Department career
executives in the internal security and criminal and civil rights divi-
sions have served as "Burologists" for the Attorney General. But
generally, the FBI and the Department ha^e dealt \vith each other at
arm's length, with frequent misunderstandings resulting from poor
communication. Similar isolation has occurred at times in the field.
In the hearings so far, there have been some serious questions raised
about this delicate relationship between the Attorney General and
the FBI Director. For example, on the first day of these hearings,
Mr. Gra}^ offered to any Senator, to any member of the U.S. Senate,
the op])ortunity to examine the entire file on the Watergate case. This
was an extraordinary, and as he said, unprecedented offer. I have
written to the Attorne}' General and Mr. Gray about it and sent copies
to the Chief Counsel of this committee.
But the important thing for what I am considering here is that Mr.
Gray admitted he had not consulted the Attorney" General in making
this extraordinary offer. I think it is vitally im])ortant for this com-
mittee to try and explore under what conditions the Attorney General
should or should not be consulted.
Brandeis University,
Waltham, Mass., March 2, 1973.
Hon. Richard Kleindienst,
Attorney General, U.S. Department of Justice,
Washington, D.C.
Dear Mr. Kleindienst: In the past you have been khid enough to arrange
for me to conduct research on the Federal Bureau of Investigation through
interviews with Justice Department and Bureau officials in the summer of 1971.
I have continued my writing since then; and I shall soon testify before the Senate
Judiciary Committee hearings on the nomination of Mr. L. Patrick Gray, III,
as permanent Director.
On the first day of those hearings, 'Slv. Clray rnade an extraordinary and, as
he admitted, "unprecedented" offer to the individual members of the United
States Senate. He volunteered to allow any Senator to examine the entire FBI
file on the Watergate investigation. This offer raises a serious question of possible
invasion of the rights of privacy of those persons about whom information,
charges, rumors, and accusations appear in the reports. The Senate as a whole
has specifically weighed the values of individual privacy and its own legislative
needs; and it has concluded that these files should be examined only by a small,
carefully selected number of Senators and their staff counsel.
According to Mr. Gray's testimony, the White House requested last year that
Presidential aide John Dean be pro\'ided with similar information. Mr. Gray
said that he asked his own legal counsel about the request and that they advised
him that, while the FBI should not volunteer such information to the White
House, it had an obligation to provide it if it was requested. Nevertheless, Mr.
Grajr has nov/ decided that he can volunteer such data to individual Senators.
It is not clear why there is a difference between the two situations and wh_v the
Acting FBI Director should 'be able go beyond the bounds of the explicit request
made b}^ the Senate.
403
Since Mr. Gray admitted that he liad not consulted j^ou in making his decision
to open the files to every Senator, I would like your views as Attorney General
and head of the Department of Justice as to whether Mr. Gray's offer is consistent
with proper Department policy and the applicable legal requirements. Whj^ is it
appropriate for the Acting Director of the FBI to so volunteer Bureau files in the
absence of, at the very minimum, a Senate resolution or other formal Congres-
sional authorization?
I hope you will give this matter the closest possible immediate attention.
Sincerely,
John T. Elliff,
Assistant Professor of Politics.
This morning there was discussion of the charges m Time magazine
regarding the wiretapping or electronic surveillance of journalists.
Mr. Gray has explained that the onl}'^ discussion he had with the Jus-
tice Department over this matter was with Mr. Hushen, the public
information officer. We have the conflict here wdth the letter that
Senator Kennedy received from the Attorney General, sajang that he
had personally contacted Mr. Gray. Mr. Graj^'s reply was that this
possibly meant the Assistant Attorney General could have discussed
this matter with lower level FBI officials.
I think these are examples of the difficulty of trying to define these
relationships.
One other example: Wliat are the standards used by the Attorney
General, or the FBI Dnector, or both, in designating a case a major
special case, a case that, as Mr. Gra}^ has said, requires the FBI to
undertake a "full court press"? How is this determined? Is it the
Attornev General who designates eases as major specials? Apparently
not. Apparently Mr. Gray immediately upon discovering that the
Watergate case had the ramifications it did, designated it a major
special for a ''full court press."
What kind of criteria are used? Is this something where one has to
rely on the informal sensitivity of the FBI Director to the attitudes
of the Attorney General or the attitudes of the Congress or the pub-
lic? Apparently, the ITT investigation just being concluded was not a
major special from the Bureau's point of view. It was an important
case, Mr. Gray admitted, but not a major special.
Now, this decision as to whether a case is a major special is crucial to
the allocation of the priorities of the FBI's skills and resources. It
determines whether or not men and expertise are taken away from a
whole range of other cases and thrown into the investigation of a major
special. I think it is going to be very important for the Congress to
understand, if not explicit rules and guidelines, then some of the
considerations an FBI Director might have in his mind when he
declares a case a major special.
Of course, there are risks in making the FBI completely subservient
to the Attorney General. Mr. Gray has acknowledged the difficulty in
defining this responsibility. When'he was asked by Senator Bayh last
week, he said it was a "tough question" in answering to whom he was
responsible ; but he pointed out that Congress, by statute, made him
responsible to the Attorney General.
In following these hearings over the past 2 weeks, it has been my
impression that Mr. Gray seems committed to making the FBI more
subordinate to the Attorney General in the chain of comniand as he
describes it. For example, his ultimate objective, he said, in the dis-
semination of information or responding to requests for information
404
from the FBI, was that the Attorney General ought to be the man who
makes these decisions. But there is a problem that this can be a wa}'
to avoid responsibility that the FBI and its Director should exercise
independent of a politically appointed Attorney General and his
assistants. Mr. Gra}^ has seen this problem and he promises to exercise
his own judgment, but he may be establishing new patterns of adminis-
trative procedure that in a day-to-day way may be an abdication of the
Bureau's independent responsibilities.
I think it is important for the Congress to play a constructive role
in protecting the Bureau from illegitimate political influence while at
the same time making it accountable to competent authority. The
Bureau has immense resources both on its own and through local law
enforcement agencies for gathering information. And information is
an extremeh^ valuable resource for the exercise of political i)ower.
With the death of J. Edgar Hoover, there may be a very real danger
of the FBI becoming an instrument for partisan political advantage.
Despite the high degree of professionalism among its special agents,
the risk of possible abuse of power under a future Director makes new
controls all the more imperative.
2. FBI CONGRESSIONAL "DOSSIERS"
To explore what some of these matters involved and how the com-
mittee may want to examine Mr. Gra3"'s own performance in recent
months, I would like to look at the question of the so-called congres-
sional dossiers. Mr. Gray has described in some detail how the FBI
used its data retrieval system to uncover any and all information in
its files about newly elected Congressmen, Senators, and Governors.
Besides conducting research in "sources readily available to the general
public," the FBI field office in each candidate's district or State
prepared—
a summary of any data (already in the files) of the field office. This might include
correspondence exchanged with the candidate; memoranda concerning personal
contacts; results of investigations involving the candidate either as a subject, a
victim, a witness, or a reference; or information voluntarily submitted to the
FBI.
If the candidate was elected, the FBI's Crime Records Division put
together "a brief abstract of any information already contained in the
files at FBI headquarters." Memoranda summarizing the results of
this search of field office and headquarters files were then "incorporated
into FBI files."
Director-designate Gray's disclosures confirm that the Bureau's
special files (or special memoranda) on Congressmen did not contain
onlj- "biographical data" from published sources. The Crime Records
Division extracted all references to congressional candidates that ap-
peared in FBI files on criminal investigations or domestic intelligence
coverage. Thus FBI executives had at their disposal whatever deroga-
toiy information had come to the Bureau's attention prior to the
Congressman's election. Since "no investigation was conducted to se-
cure this information," according to Mr. Gray, then the Bureau
apparently made no attempt to reconfirm the accuracy of whatever
information might have made its way into the files over the years.
I commented in my prepared statement that the potential for
political use of this data is obvious.
405
The potential for political use of the data in these special memoranda is obvious.
As long as such information remains in the field office or headquarters files on
other subjects, the opportunities to use it for purposes other than law enforce-
ment are limited. But as part of a special centrahzed file on Congressmen, Sena-
tors, and Governors, it becomes a convenient resource for the exercise of political
influence. Whether it is so used or not depends too greatly on the self-restraint
of FBI executives. Therefore, it is vitally important to know what procedures
limit access to the FBI's data retrieval system. Specifically, under what condi-
tions maj' a Bureau official initiate or conduct a review of file indexes for infor-
mation about a Congressman, a Governor, a pubhc figure, or even an average
citizen in investigative or intelligence files?
Mr. Grc\Y has said he has been tightenmg vip on data dissemination.
For example, he mentioned that only one copy of a letterhead mem-
orandum was being sent to agencies that used to get a great many
copies. They also have xerox machines, though, and the problem is-
not entirely one that is the FBI's fault, as Mr. Gray has stated
several times. Nevertheless, Mr. Gra}-^ in his letter to Senator Er\in
about the congressional special memoranda states :
All FBI personnel have access to information in the files of the FBI if thev
need the information in connection with their official duties.
Now, that is a very broad statement, "if the}^ need information in
connection with their official duties." The question is under what
specific conditions is a review of indexes conducted? Is there informa-
tion in the manual of rules that this committee could examine that
could help explain how the Bureau proceeds? Is, for example,
this review of indexes subject to White House requests? It seems that
when name checks come over from the White House, the Bureau
conducts them. Who now can see the special memoranda that still
exist? Mr. Gray says they have been placed under lock and key,
no one is ever going to see them again, but the}^ have not yet been
destroyed.
This is the first set of questions for the future that is posed by the
congressional dossiers.
The second involves a matter that Mr. Gray has been very forth-
right about. He said during the 1972 campaign last year he received
some information about someone that he thought never should have
come up through the information channels of the FBI, and he told
his subordinates never do this again. He has acknowledged that
under his predecessor it was at times a procedure used to send informa-
tion of this sort to the Director. This procedure has been described
by Edwin Guthman, now with the Los Angeles Times in his account
of his years as aide to Attorney General Robert Kennedy. He wrote
that it was:
Standard procedure in the FBI for the special agents in charge of FBI field offices
around the country to report to J. Edgar Hoover intelUgence not necessarilj-
having to do with national security or law enforcement but which nevertheless
may be of special interest to him.
It is conceivable that those alternate channels might also be used
to send. reports on information obtained about a Congressman in the
course of criminal investigations or intelligence coverage directed at
another subject. Subordinates, seeking to win favor with the Director,
have a great incentive to make such use of their j^osition unless the
Director makes clear he does not want them to do so.
406
Mr. Gray said he discontinued the dossier program orally and not
by written order. He has not mentioned, or at least he did not in his
letter to Senator Ervin, whether or not the collection and maintenance
of such special files on governors and local and State officials has been
discontinued. I assume that it has been, but I believe Mr. Gray should
be on the record in that respect.
Finally, he should be asked why there have not been established
written dii'ectives rather than oral expressions of outrage to prevent
future reestablishment either of the special memoranda on public
officials or of the procedures and practices in which information
unrelated to law enforcement or internal security were passed up
through FBI channels.
So that is the second problem posed b}' these congressional dossiers.
The third problem has to do with how they were used by the Bureau
in its Congressional relations policies. Mr. Gray says that it was
briefing material for use by FBI officials "making a call on a newly
elected Congressman or Senator."
Congressional liaison officials decided it would be most beneficial to them if they
had some biographical data on newly elected members and a knowledge of any
prior contacts bj^ FBI representatives with these new Congressmen and Senators.
One former aide to J. Edgar Hoover told journalist Walter Pincus
that the data was collected —
so that Hoover would know of anything in a new legislator's background that
would make it inadvisable to send what became a traditionally congratulatory
letter. If anything negative turned up, the inquirj^ would usually go no farther
than a check of police records. The file would be kept in Washington and chances
were that no letter would be sent. In no case, however, would such information
be exploited for partisan gains.
These are two explanations.
In my interviews I have learned that the Bureau's congressional
relations practices were more elaborate than tliis. A former FBI
executive has described more fully the Bureau's policies for approach-
ing Congi'essmen and cultivating their political support. The public
relations program of the FBI sought first to identify those Congress-
men and Senators who might be sympathetic to the FBI. The next
step was to develop informal, amicable relations with those legislators
through individual agents and former agents who were friends or
relatives. On the other hand, any Congressman or Senator found
unsympathetic or critical of the Bureau was not cultivated and might
be cut off from any unnecessary dealings ^^"ith the FBI. The Congress-
m.an might be placed on a "no contact list", containing the names of
persons not to be approached bj^ FBI agents without special clearance
from headquarters.
According to Time magazine, some agents charge Director-designate
Gray with "the perpetuation of Hoover's notorious 'blacklist' of people
to be shunned, socially and otherwise by FBI agents." Therefore, the
next question is to what extent the Office of the Director will continue
these practices after its recent assumption of congressional relations
duties from the Crime Records Division.
Another area that must be explored with respect to the congressional
special files is the relationship of this data to the President. An argu-
ment can be made that the FBI Director should be notified whenever
derogatory information about a Congressman appears in investigative
407
or intelligence reports. For instance, the President may wish to know
whether a Congressman has been associated in one way or another
with suspected criminal or subversive or extremist activity. The
so-called Earth Day report obtained by Senator Muskie in 1971 could
have served this purpose. This FBI intelligence memorandum on
"National En\dronmental Actions, Washington, D.C., April 22, 1970,"
linked the rally which the Senator addressed to two ecology activists
previously associated with the Communist Party and Students for a
Democratic Society. The primary function of the report was probably
to keep track of organizations that engaged in protest demonstrations
in the Nation's Capital. But it is conceivable that the Wliite House
might receive the memorandum to inform it of the possible role of
extremists in efforts to influence environmental policy.
Now, tliis is a very difficult question to get a handle on. The dis-
semination of FBI information is ofttimes not in the hands of the
FBI. Mr. Gray has replied to a question by Senator Tunney that the
summary memoranda on Congressmen were not sent to the White
House, and he has asserted he would not be a party to any partisan
use of FBI information, but he admits that FBI data is provided to
the Wliite House, "if there is a reason." Mr. Gray adopts a "presump-
tion of regularity" in dealing \vith the Wliite House.
Questions arise not only about the special requests that may come
from the Wliite House for information from the FBI which the FBI
Director may resist in exercising his judgment, but also about the
regular day-to-day dissemination of information, particularly in the
domestic intelligence field. Does the Wliite House receive letterhead
memorandums to inform it of the possible role of extremists in efforts
to influence Government policy? Perhaps these memorandums are not
directly transmitted by the Bureau, but by the Internal Security
Division of the Department of Justice. Does the Justice Department
pass these letterhead memorandums on to the Wliite House, or — and
this has become much more significant, in recent weeks — might it pass
such information to a political campaign?
In the records of the district court here on the Watergate case, there
is information which has been published b}^ Journalist Walter Pincus
that the Committee for the Reelection of the President received what
appears to be an FBI letterhead memorandum. Mr. Pincus, in his
article in the New Republic, February 24, 1973, writes:
During the Watergate trial RoVjert Odle, who served as administration director
for the reelection group, testified he hired James McCord, Jr., (one of those con-
victed at the trial) to serve as the organization's securitj^ chief. McCord, who had
worked for the FBI and CIA, was a part-time committee consultant in late 1971
and became full-time in Januarj- 1972. In describing McCord's function in pre-
paring security measures for the committee's offices and speakers, Odle said Mc-
Cord was "plugged in" to the FBI as well as the Secret Service. The "plugged in"
to the bureau aspect was developed during McCord's brief defense. One of his
former assistants on the Nixon committee, Robert Lee Houston, was asked to
describe his duties under ^McCord's supervision. "Part of my instructions were to
receive and record information from outside police sources," Houston testified.
What sources he was asked? "The infonnation I got came from the Federal
Bureau, the Internal Security Division [of the Justice Department]" and various
police forces. INIcCord's attorney then submitted for the trial record a handful of
reports McCord filed with his "sui:)eriors, including several dated in May 1972,
shortlv after Grav took over the FBI. The reports selected, apparently, fiom a
hundred or more" McCord wrote, focused on the potential for violence against
Nixon headquarters facihties. But a "confidential" memo dated 30 May 1972 on
408
the Vietnam Veterans Against the War began in traditional FBI summary form-
A confidential source of known reliability has advised this date that an uAidenti-
?f vvTw ^''^''*!r of the McGovem for President Committee attended a meeting
of \\AW recently and advised that the Mc Govern Committee is leasing a station
wagon for the VVAW" to use for campaigning purposes. The memo also carried a
short summary- of the background of the WAW— again the type of material
found in an FBI summary. Houston, who stiU works for the reelection committee
S- 1 """u ^°"^^*^nt further on his testimony. Another reelection committee
official, who was in direct contact with the security operation during the campaign
confirmed that McCord regularly dealt with an FBI agent who gave the committee
mtormation on groups or individuals who at some point might pose a problem' to
the JNixon campaign organization.
The specific memorandum, though, had apparently no relationship
to the security of the Nixon campaign. It discussed instead the tie
ot the AIcGovern campaign to the WAW and had no relationshii) to
any specific danger to the Nixon campaign.
I am not suggesting that Mr. Gray specifically authorizpd this
dissemination. What I am suggesting is that there are routine pro-
cedures m the Bureau in its domestic intelligence operations that
may result in the dissemination of such information, and it is vitally
necessary for the Bureau and those immediate reciijients of Bureau
reports, such as the Internal Security Division of the Justice Depart-
ment, to be scrutinized by this committee and the ('ongress for their
standards for disseminating material of high sensitivity that could
have explosive poHtical potential.
One other problem relates directly to the nature of the Wliite
House s relationship ^vith the FBI \vith respect to appointee back-
ground inquiries or name checks. Director-designate Gray declared
that a Congressman is investigated ^yhen he "is being considered for
a top-level Government api)ointment." This statement brino-s to
mmd the 1971 incident involving CBS reporter Daniel Schorr, Shich
showed that the Wliite House could order the FBI to begin such an
investigation without the subject's knowledge. Presumably the
President's staff can start similar inquiries about a Congressman —
perhaps limited to a quiet search of FBI files rather than a more
visible full field mvestigation— to learn more about a Congressman's
background.
I don't necessarily question this practice, but it seems to me that
the risk of possible improper requests may justify requiring at the very
least a Congressman or other subject's personal consent before such
data retrieval is begun. Again, the i)resumption of regularity may well
govern dealings M^th the White House when it comes to name checks
and appointee background inquiries but ne\-ertheless the risks of
irregularity, which the Schorr incident did at least highlight if it
did not entirely confirm, suggest that some safeguard, ]:)erhaps the
minimal safeguard of requiring the subject's consent, might very well
f^e imposed to deal ^^^th this sort of difficulty. As Senator Eastland
said, he had seen many FBI reports and there is a lot of rot in FBI
reports about people. The use of the FBI's data retrieval system to
retrieve data appearing in its files ought to be a very sensitive matter,
i know Mr. Gray believes it is, but I think there are suggestion^ that
this committee might make to improve the FBI's abihtA^ to handle
these matters.
In any event, the congressional dossier incident, so-called, demon-
strated one thing and that is the FBI's ability to escape scrutiny over
the years with respect to this practice. It was totally secret. Nobody
409
had ever heard of it before. Indeed, it remained secret from Mr Gray
for many months. Another thing this congressional special memoran-
dinn demonstrates is that the FBI did not use it for overt intimidation
of anyone. It was a matter of bureaucratic politics, of cultivating con-
gressional support, of cutting off from contact concessional critics
But IS bureaucratic i)olitics a justification for this kind of gatherinc^
together of information from the Bureau's files with its attendan't
invasion of privacy and potential for intimidating use?
This committee, in considering the future of the FBI's data collec-
tion, has two alternatives. It can, as I think has been intimated at
times, adopt a criminal statute to make it a crime to disseminate or
disclose in an unauthorized manner FBI reports, so that it would be a
crime to disclose the interview report to Mr. Segretti if in fact that
was done. But there are those of us who beheve such a criminal statute
would smack too much of an Official Secrets Act.
Instead, this committee has the opportunity to encourage the
Bureau and to authorize the Bureau by statute, to adopt administra-
tive pohcies to curtail the dissemination of information and to elim-
inate unnecessary information from its oa^ti files. Too many agencies
of this Government are authorized to receive FBI data. The Army
intelligence files demonstrated that. But the FBI even lacks authority,
it claims, to destro}^ these special memoranda. It has to go through
some complex procedure with respect to review of this material with the
National Archives, according to Mr. Gray's testimony, and yet he
has said in his opening statement that he could eliminate the identifi-
cation and fingerprint files on all persons over 80 years of age. There
apparently was authority for him to do that in terms of eliminating
material from Bureau files.
In an}^ event, there was discussion earlier in these hearings as to
\\ hether or not Congress ought to adopt a statute to authorize the
Bureau immediately to destroy these special memoranda on Congress-
men. But it seems to me this committee and the FBI need to consider
even more fully statutes that would permit the FBI to weed out un-
necessary files. If the New York PoHce Department's intelligence
program can eliminate 80 percent of its intelligence files and still
believe it can be an effective intelligence agency, dealing with the
difficult problems one must face in maintaining security m the city
of New York, then it seems to me possible for the FBI, in consultation
with this committee, to be able to arrive at an appropriate legislative
framework and administrative standards to begin the ijrocess of weed-
ing out FBI files.
Finally, the problem of maintaining a no-contact list ought to
engage this committee's attention. Is Mr. Gray maintaining this
practice of the FBI? Does the risk of embarrassment to the Bureau
that comes from makmg contact with a critic outweigh what I believe
are more serious risks in having a document or procedure that identi-
fies the FBI's critics in order to cut off contact between the Bureau
and those critics? As a matter of principle, above aU else, should not
the Federal Bureau of Investigation treat all public officials, all
Congressmen, all citizens alike with no preferential treatment on the
one hand and on the other no isolation on a no-contact list?
As you see, just exploring the issue of congressional dossiers, as
they are called, opens up a whole range of questions regardmg the
FBI as an organization, not just in the past but in the future, matters
410
that this committee at this jwint in the' FBI's history has a unique
ojiportunity to explore. But the issue of congressional dossiers is
rather minor in comparison to what I beUeve is the single most funda-
mental issue confronting the Congress with respect to the Federal
Bureau of Investigation, and that is its role as a domestic intelligence
agency.
3. FBI DOiMESTIC INTELLIGENCE AND PRESIDENTIAL POWER
Since the 1930's succeeding Presidents have assigned internal
security intelligence functions to the FBI. Indeed, every major nation
in the world today has some form of "|)olitical police" that serves as
a domestic intelligence agency. In Great Britain the two roles of
countering foreign espionage and watching domestic um'est are sepa-
rated. There, in rough terms, M.I. 5 catches spies and Scotland Yard's
Special Branch follows radical activities. Other nations combine these
tasks in a single security agency or, like the FBI and the Royal
Canadian Mounted Police, unite intelligence duties with broad
criminal investigative and law enforcement service responsibilities.
Nevertheless, the FBI's prestige has made it possible for Congress to
avoid the difficult decision specifically to establish a "political police"
in the United States. When President Franklin D. Roosevelt wanted
someone to gather intelligence about foreign agents and Communist or
Fascist movements, he turned to J. Edgar Hoover's criminal inves-
tigators. And Congress acciuiescecl in the President's choice without
ever deliberating formally on the scope and constitutional basis for the
FBI's intelligence authority.
This is unlike the Central Intelligence Agency, our chief foreign
intelligence agency. In the National Security Act of 1947, Congress
explicitly deliberated on the need for and the basis of the establishment
of a foreign intelligence agency in the CIA. They never did anything
like that with respect to the FBI. Gradually over the years after
Roosevelt's initial decision, the Bureau accumulated more responsi-
bility as Mr. Hoover retained the confidence of later Administrations
and as the dangers to internal security evolved from "subversion" in
the 1940's and 1950's to "extremism" hi the 1960's and 1970's. As long
as Hoover was Director, no attempt was made to define clearly the
FBI's proper intelligence role. It was easier to sidestep the hard
questions of policy and constitutionality by relying on the Director's
reputation for integrity and restraint. Thus inherent presidential
power has been the prime source for the Bureau's authority in the
intelligence field.
Let me try to explain this more clearly. Congress has passed statutes
on espionage, on subversive activities, on domestic violence, and these
statutes do define the FBI's investigative jurisdiction, but they do not
define the scope and rationale for intelligence coverage. There is a
significant difference between criminal investigations, regular closed-
end criminal investigations, and continuing intelligence work. Criminal
investigations and Federal employee background inquiries have a
beginning and an end, but the Bureau's uitelligence missions involve
an on-going process of "developing" information about events, persons
and groups and even the attitudes of large segments of the American
people. Moreover, uitelligence work involves a variety of covert
activities. These departures are based on a broad mandate of delegated
executive authority.
411
One can trace this authority back to 1936 when FBI Director
Hoover instructed the FBI field cffices — quoting from Don White-
head's "FBI Story," based on FBI records-
Obtain from all possible sources information concerning subversive activities
being conducted in the U.S. by Communists, Fascists and representatives or
advocates of other organizations or groups advocating overthrow or replacement
of the government of the U.S. by illegal methods.
At that time there was no SmitJi Act. And advocacy of revolution
w^as not a Federal ciime. The Bureau's mission was based, instead, on
President Roosevelt's desire for "a broad intelligence picture of
Communist and Fascist activities alike in relation to the economic
and political life of the country." This directive was made public in
1939 when the President asked local law enforcement agencies to turn
over to the FBI "any information obtained b}^ them relating to
espionage, sabotage, and subversive activities."
I might note that at that time President Roosevelt declared a
national emergency, and one of the four Executive orders that he
issued in connection -with that national emergency was an order that
du'ected the expansion of FBI intelligence operations. Executive Order
No. 8247, September 8, 1939, dhects the Attorney General to:
Increase the personnel of the Federal Bureau of Investigation, Department of
Justice, in such number not exceeding 150 as he shall find necessary for the proper
performance of additional duties imposed upon the Department of Justice in
connection with the national emergency.
Now, are these Executive orders by President Roosevelt, especially
the September 8, 1939, Executive order that has been lef erred to by
the FBI in explaining the source of its authority-, still the source of
its jurisdiction in intelligence matters? The annual reports of the FBI
over the years refer explicitly to those Executive orders. Mr. Gra}* in
his opening statement stated that the Bureau stayed within its juris-
diction as defined by the Congress and the President. The President
is a separate source of jurisdiction foi the FBI. Now, one may think
a 1939 Executive order must have been superseded over the years,
but Charles Brennan, then head of the FBI's Domestic Intelligence
Division, told the Scranton Commission on Campus Unrest in 1970
that the Bureau's authority w^ent back to Roosevelt's 1939 order to
investigate subversive activities and that it w^as:
Within the framework of this executive order that basically the FBI over the
years has tried to fulfill these responsibilities.
Congress, I believe, has not fully faced up to the fact that the
FBI's intelligence function is rooted in Executive power and that
Congress has abdicated its responsibility or at least deferred exercising
its responsibility to authorize such significant Government programs.
There are other Executive orders establishing the Federal employee
security program defining FBI intelligence duties. The original order
specifically required the FBI to maintain records of persons concerning
whom there is substantial evidence of membership in or S3mipathetic
association wdth any group that might be conceivably designated on
the Attorney General's list as it existed from 1947.
President Nixon in July of 1971 issued a new Federal employee
security order and that order serves as a reference point for the execu-
tive criteria for FBI intelligence. Besides defhiing Communist, Fascist,
and totalitarian groups more fully, the Nixon order extends intelli-
gence coverage to any group that:
412
Engages in, unlawfully advocates, or adopts as a means of obtaining any of its
pur|)oses * * * the unlawful damage or destruction of property; or injury to
persons; or * * * the commission of acts which violate laws pertaining
to * * * riots or civil disorders * * * obstructing the recruiting and enlistment
service of the United States, impeding officers of the United States, or related
crimes or offenses.
The FBI continues to develop and maintain records of persons
associated with organizations that may fit these stanchirds.
The Senate has been concerned specifically about the relationship
of President Nixon's order to the Subversive Activities Control
Board, but it is not generally recognized that this order serves as a
point of reference for the FBI's authority in the intelligence field.
There have been other directives that have been less formal relating
to ghetto riot activity, relating to demonstrations. I think it is in-
terestmg to note that in 1964 President Johnson was able to prevail
upon the FBI over the reluctance of some of its highest officials to
conduct an investigation of the riots of the summer of 1964 and to do
more than just find facts, but to make evaluations of that data and to
make policy recommendations from that data. 1 don't know that it
was coincidence that the FBI acceded to this request from the Presi-
dent, a highly unusual request, during a Presidential election campaign
when the opposition candidate \\ as stressing the breakdown of law and
order.
I commented further in my prepared statement.
In September 1967 Attorney General Ramsey Clark ' advised the Bureau of
the importance of using "the maximum available resources, investigative and
intelligence, to collect all facts bearing upon the question as to whether there
has been or is a scheme or conspiracy of whatever size, effectiveness or affiliation,
to plan, promote or aggravate riot activity." Clark emphasized that "this is a
relatively new area of investigation and intelligence for the FBI" and that the
activities of persons "who make the urban ghetto their base of operations . . .
may not have been regularly monitored by existing intelligence sources." To
improve the Justice Department's capacity for analyzing FBI intelligence reports,
Clark created an Interdivisional InteUigence Unit (IDIU) "responsible for review-
ing and reducing to quickly retrievable form all information that may come to this
Department relating to organizations and individuals throughout the country
who may play a role, whether ]nu-posely or not, either in instigating or spreading
civil disorders, or in preventing or checking them." The IDIU secured computer
facilities to collate FBI Intelligence data and assist in the jn-eparation of rejwrts
for the Attorney General. One estimate was that in December 1967 the Depart-
ment received "more than 150 FBI memoranda and rejjorts relating to this area
of interest . . . on an average day." These reports were sul^mitted "in the form
of letterhead memoranda that are written in the various Bureau field offices."
They were "variously styled, and most often either about an organization, an
individual, or an event." In addition, the field offices prepared "periodic reports
on the racial situation in various urban areas and on organizations."
Since 1971 the IDIU has been known as the Research and Evaluation Unit
■of the Justice Department's Internal Security Division. Its functions have
widened to include analysis of FBI intelligence reports regarding protest demon-
strations, campus unrest, jjolitical violence, and bombings. In addition, the FBI
"obtains information from State and local sources" and transmits it to the unit.
Asked in 1971 whether the Justice Department was satisfied with the Bureau's
ability to get the data needed to iirejiare for civil disorders. Assistant Attorney
General Robert C. Mardian replied, "We always want more information."
The administration itself has been forced to rely on inherent execu-
tive power in defending these intelligence functions of the Federal
Government. In testimony before the Subcommittee on Constitutional
Rights in 1971, the Justice Department asserted foimally that domes-
tic intelligence operations are based on inherent executive powers.
413
Citing a 19th century Supreme Court decision interpreting the Presi-
dent's constitutional dut}^ to "take care that the laws be faithfully'
executed," Department lawyers declared that the Government may
gather any information "legitimately related" to the chief executive's
responsibilities for "our international relations, and all the protection
implied by the nature of government under the Constitution." In
addition, the}^ lelied on the constitutional provision guaranteeing every
State "against domestic Violence" as another basis for the "informa-
tion gathering authority of the executive branch * * * directed to
determine the possibility of domestic violence occurring at a particular
place or at a particular time." According to these interpretations, the
domestic intelligence programs of the executive branch "are not de-
pendent upon any grant of legislative authority from Congress, but
derive from the Constitution itself."
This was Assistant Attorney General Rehnquist's testimon}' in
1971. In short, the FBI's charter comes from the President. If Congress
is not to abdicate entirely its role in our constitutional separation of
powers, it should establish a firmer legal foundation for domestic in-
telligence activities. Reliance on assertions of inherent executive power,
no matter how candid, ma}^ undermine the legitimacy of the FBI at a
time when distrust of Government is widespread. A legislative frame-
work authorizing the most vital functions might serve as a basis for
periodic congressional review to insure that the lawTuakers' intentions
are being carried out. Therefore, one of this committee's major duties
at this point in the FBI's history is to begin developing workable and
realistic legislation.
Appropriate measures cannot be drafted without thorough scrutiny
of FBI functions. Besides devoting a portion of its own resources to
the task, this committee should secure a commitment from the new
Director that he will cooperate fully in providing necessary informa-
tion and staff liaison. Only under that condition can a select group
of responsible legislators imdertake the long and careful study required
for well-considered statutory enactments. In 1971 the Justice Depart-
ment expressed willingness to consider "legislation which is carefully
drawTii to meet demonstrated evils in a reasonable way, without im-
pairing the efficiency of \dtal Federal investigative functions." Such
an enterprise is not beyond the capacity of Senators chosen for their
integrity, conscience, and judgment.
In immediate terms, the statute with respect to arrest records
expires at the end of fiscal 1973. But the point is that the problem
with lack of statutory authorization is not limited to the narrow
area of identification records. It extends beyond to the whole range
of intelligence functions.
4. FBI DOMESTIC INTELLIGENCE OPERATIONS
Finally, let me talk a bit about FBI domestic intelligence operations,
because it is there that Mr. Gray appears to have committed himself
to the continuation of policies and programs that do not entirely
take into account many of the criticisms over recent years with respect
to the effectiveness of the Bureau's intelligence policies and with
respect to the impact of those policies on privacy and civil liberty.
73-
414
The FBI has been confronted with new problems during the 1960's;
new-left and racial extremism, so-called, and civil disorders and mass
demonstrations have become major subjects of intellig:ence v/ork.
Consequently, this committee ought to consider seriously certain
important questions about what Mr. Gray's plans are for the handling
of FBI intelligence data, the scope of its intelligence gathering, and its
use of sensitive intelligence techniques.
Electronic surveillance and infiltration by informants have been
the most intensive forms of FBI intelligence coverage. They ])roduce
mformation about the acti\'ities of persons or groups targeted for
surveillance and about other individuals who have contact with them.
Informant re])orts and electronic surveillance logs serve as integral
parts of the FBI's data collection system. Upon becoming part of
each field oflice's files on specific persons and groups and subjects,
surveillance data are available for preparing ini elligeuce reports.
These reports, known in Bureau parlance as letterhead memoranda
(LHlM's), are the primary ^'chicle for disseminating intelligence out-
side the FBI. When field ofl&ces prepare LHM's they accompany
them with internal administrative memos for use within the Bureau.
These memos identify the specific sources. However, the Justice
Department and other executive agencies receive intelligence reports
only in the form of LH^M's, ^^■ith the result that they may be una\\'are
of how the inform,ation was obtained. Neither the Attorney General
nor his subordinates ^N'ithm the Justice Department exercise adminis-
trative supervision over the FBI's internal regulations for preparing
and dissemin-Ating LIIM's.
Besides lacking outside supervision, the FBI's ]:>ractices appear to
lack special safeguards for the security and strict confidentiality of
higidy sensitive mtelligence mformation. In the course of routine
operations the Bureau has the capacity to retrieve and disseminate
any information in its possession about specific individuals. All names
are indexed at the field office level or at headquarters, so that all
memoranda in vhich a person is mentioned can be recoverf^d even
if the individual does not have his own file. Requests to "check
indexes" and "review indexes" may come from Bureau headquarters
or from another field office. No distinction is made between security
intelligence files — which include highly sensitive electronic surveillance
logs and informant reports— and ordmary crimmal investigative files.
Besides electronic and informant surveillance and agent observation,
the FBI relies on a wide variety of "established sources" in the com-
munity— State and local law enforcement officials, civic leaders, offi-
cials and members of voluntary associations, businessmen, college
administrators and security personnel, and other persons believed
reliable and willing to help the Bureau on a continuing basis. FBI
intelligence uses these sources to make sweeping surveys designed to
uncover any indications of extremist activity.
When the FBI's Domestic Intelligence Division in Washington
determines that a category of persons or groups is the object of at-
tempted influence from extremists, a prehminary survey is made of
every organization in the targeted class. The net is cast widely to
capture an}?- evidence of contact with extremists. Even where no signs
are discovered, apparently innocent group leaders are singled out for
background inquiries and indexing purposes on the remote possibility
that some evidence will turn up in the future. Moreover, LHM's are
415
prepared describing the group's origins and activities for pos=;ible
dissemination outside the Bureau.
These data collection and dissemination methods are not new. They
were formulated decades ago to deal with Communists and Fascists
whose fifth column activities appeared to presem, a serious danger to
national security. FBI intelligence coverage had a certain generally
accepted logic in that era. As Attorney General Robert Jackson ex-
plained in 1940, the Bureau's mission involved 'Isteady surveillance
over individuals and groups within the United States who are so
sympathetic with the systems or designs of foreign dictators a< to
make them a likely source of Federal law violation." J. Edgar Hoover
emphasized that advocates of foreign "isms" had ''succeeded in boring
into every phase of American life, masquerading behind 'front'
organizations."
During the past decade the FBI has attempted to apply this system
to new problems that have little relation to the fifth column model.
The passion for comprehensive data still dominates intelligence opera-
tions. In preparing what the Bureau calls its security index, field offices
are instructed to identify every individual who is a leader of an
extremist or subversive group, a key activist in the organization, or a
member or svmpathizer who shares the group's subversive or ex-
tremist aims. Maintenance of a comprehensive security index imposes
heavy burdens on the field offices. They must trace down every hint
that an individual is S3^mpathetically associated ^\'ith subversives or
extremists. Substantial resources of time and manpower must be
devoted to compiling this data.
What is wTong mth the FBI's system is not that it singles out
certain persons and groups for intelligence coverage because of their
illegal activities, although it is questionable whether the Bureau should
defme "extremism" on its owm without supervision. Rather, the weak-
ness lies in the FBI's effort to apply the fifth column model of front
organization activit}^ to contemporary groups who may use violence
and other illegal means to achieve their political ends. By assuming
that such organizations normalh' seek, in traditional Communist Party
fashion, to infiltrate and control other groups, the Bureau distorts
reality to fit its preconceptions. As a result, intelligence inquiries fall
into the old pattern of sweeping surveys of broad categories of people.
The bureaucratic momentum of the past produces intelligence reports
and files that not only describe legal activity and index innocent
persons but also overwhelm the field offices ^vith paperwork.
Critics frequently charge that the FBI compiles "pohtical dossiers"
on people not reasonably suspected of violation of law. They claim the
Bureau gathers information about the political beliefs of American
citizens. In reply, FBI officials state that they are not interested in
ideas and viewpoints of individuals. Unfortunately, both sides are
talking past each other. The Bureau's prime interest may well be "in
the realm of action." Former Assistant to the Director William C.
Sullivan was probably candid when he told the Scranton Commission
on Campus tJm-est, "Ah we are concerned about is the violation of
the laws in one form or another, whether it be interfering with the
rights of students or burning a building or trying to demolish the
country by force and violence." Nevertheless, the methods used to
uncover potential illegal behavior are so extensive in scope that they
result in the collection of unnecessary information about political
416
opinions. The files opened on leaders and ''ke}^ activists" of innocent
groups may not be "political dossiers," but are such background
inquiries and indexes essential to effective intelligence operations?
Indeed, there is always a danger in intelligence work that informa-
tion overload may create so much "noise" that truly vital data are not
perceived. The sheer bureaucratic bulk of the FBI's intelligence
information system ma}^ be counterproductive.
The conclusions of the staff report for the Subcommittee on Con-
stitutional Eights, Avith respect to Army surveillance, I believe are
relevant to FBI data collection as well. These conclusions are as
follows :
The collection of information, and its attendant infringement on
the constitutional rights and privacy of American citizens, has some-
times been justified on the ground of necessity, chiefly of public
safety, ^'et, it ai)pears that the vacuum-cleaner approach of collecting
all ]iossible information resulted in great masses of data on individuals
A\hich was valuable for no legitimate — or even illegitimate — military
purjioses. These vast collections of fragmentary^, incorrect, irrelevant
information — composed of vague conclusions and judgments and of
overly detailed descrijitions of insignificant facts — could not be con-
sidered "intelligence" by any sense of the word. They reflect an
unfortunate tendency m ithin the Government to react to the problem
of civil disturbances by conducting widespread and indiscriminate
and duplicative surveillance. The result is a great collection of informa-
tion which gives the illusion of knowledge, but which hampers the
ability of resi)onsible officials to make mtelligence decisions.
Senator Hruska. Would you give us a reference to that document?
jNlr. Elliff. "Army Surveillance of Civilians," by the staff of the
Subcommittee on Constitutional Rights, Committee on Judiciary,
page 97.
Senator Hruska. And the page, please?
Mr. Elliff. "Army Surveillance of Civilians: A Documentary
Analysis," page 97.
Senator Hruska. I thought you were referring to FBI files. How-
ever, it is an Army file?
Mr. Elliff. That is right, and I wanted to point out that 20 to
60 percent of the Army's files were received from the FBI in these
various data banks that the staff examined. The source material for
Army files was often material passed to Army intelligence by the
FBI and what the staff has done is make some overall general
indications.
Senator Hruska. In all fairness, ve ought to note that we are
talking about Army files.
Mr. Elliff. Right. .
Senator Hruska. But you cite it in the context of a discussion of
FBI files.
Mr. Elliff. Yes, sir. The problem I am trying to identify is the
IH'oblem of information overload, when you have so much information
that responsible decisionmakers can't really make use of it.
Now, of course, the other danger is that despite the FBI's attempts
to be discreet, and they do make serious attempts to be discreet, their
inquii'ies into political activity may have an impact on free speech.
417
Former Assistant Director Cliarles Brennan admitted to the
Scranton commission "that there is perhaps a great idea throughout
the country and particuhirly in the academic community and on the
part of many students that the FBI constitutes an overwhehning
pohce state looking over everybody's shoulder." To counter this
impression Brennan pointed out that the Bm-eau had only 8,000
agents and a broad variety of investigative duties. He tho\ight it
obvious that the FBI 'Svould be extremely limited in our capacity
to look over everybody's shoulder." Yet, given its reliance on in-
formants and on ^ndespread estabhshed sources in other law-enforce-
ment agencies and in the community, the Bureau's capacity is much
greater than the number of agents suggests.
Doubts about the FBI's operations are reinforced by disclosures
that the Bureau has engaged in covert poUtical activity to combat
extremism. In 1968, field offices were instructed to mail reprints of
an article on campus um-est "anonj^mously to college educators who
have shown a reluctance to take decisive action against the 'New
Left'." In 1969, the head of the FBI's Domestic Intelligence Division
addressed a closed meeting of New York businessmen to plan strategy
against the plans of wStudents for a Democratic Society for sumnier
work among factor}'^ workers. These examples indicate that the
Bureau at times sees its role as demanding more than intelligence
gathering, and Mr. Gray's own public speeches, I believe, have
raised some questions in this regard.
I accept Mr. Gray's characterization of these speeches as patriotic,
but what concerned me is his condemnation of certain ideas and
points of \'iew as extremist when he is head of an agency that exer-
cises the powers of government to control extremism. It cannot help
but have an intimidating effect on those persons whom he chooses to
consider and label extremists that the weight of his office and agency
is being put behind such a condemnation. I am not saying the Bureau
is seeking to intimidate people from gaining access to certain ideas,
Mr. Gray is attempting to refute extremist points of view, but it
seems to me that that obligation is not one that the Director of the
FBI ought to carry out. It is for the American citizen, Americans in
political life, elected officials generally, to enter the marketplace of
ideas and refute the extremist in our midst. But for the Director of
the FBI to undertake to condemn ideas as extremist, no matter how
abhorrent the}^ maj be, seems to me to put behind that condemna-
tion a weight that is unjustified and has what may be called a "chilling-
effect" on freedom of speech.
Special problems arise from the use of informants to infiltrate
extremist groups. As sociologist Morris Jano^^dtz warned in a study
for the Eisenhower Commission on Violence:
The control of secret operations is at best difficult. The task becomes even
more complex and troublesome when these surveillance agencies develop the
conception, as they often do, that to collect information is not enough. They
begin to believe that they must act as active agents of control, particularly in
spreading distrust within these organizations.
The FBI has admitted trying to penetrate extremist organizations
"with highly quafified sources consisting of not only rank-and-file
members but also individuals who are in a position to have access to
plans,' and policies." At times covert penetration has, in fact, been
used to encourage the fragmentation and disintegration of extremist
movements.
418
There is some documentation for this which I can provide, although
I must say my most direct confirmation is from discussions with FBI
officials wliich I have conducted as a scholar. This is the power of an
agency of Government to destroy extremist movements not by prose-
cution, not by arrest and conviction, but by direct methods of frag-
mentation, infiltration and of control and disintegration. I think that
this committee ought not to rely totally on one man, especially one
man who is new to the job, in determining when those especially
sensitive powers are to be exercised if ever at all.
Unlike electronic surveillance where the Attorney General's ap-
proval is required for the installation of every device, penetration by
informants is not subjVrt to outside supervision. Yet tlio risks to
privac.y are as great, and the i)otenti d for abuse by ipunipulation and
control is even greater. The danger of provocative action is heightened
hy the FBI's refusal to use its own trained and disciplined agents for
sensitive infiltration duties. In contrast to agencies like the New York
City Police Department, whicli often uses experienced policemen for
these delicate tasks, the Bmern has relied on amateurs who must
then be carefully controlled by their contacting agent to avoid
misconduct.
Another weakness in the FBI's intelhgence operations is its policy
toward the evaluation of data. Every LHM bears the statement:
''This document contains neither recommendations nor conclusions
of the FBI." Thus intelligence reports are written to avoid any hint
of an agent's own interpretation. They are a compilation of informa-
tion obtained from sources or physical observations and direct con-
tacts, with little attempt to bring the agent's experience and knowledge
to bear on the subject. Analysis is left to others — the Justice Depart-
ment, primarily — who receive the unevaluated data.
For the Bureau's own internal purposes agents are expected to make
recommendations. Should a file be opened? An informant recruited?
A source contacted? An electronic device installed? An individual
designated for the security index? And so on. In making decisions for
the security index, for instance, x^ssistant to the Director Alan Belmont
told the Warren Commission in 1964 that FBI agents used "judgment
in the pursuance of this work, and they would continue to use judg-
ment m the selection of people who meet this criterion." The question
is not whether agents evaluate their findings; rather it is whether they
are capable of doing so with sensitivity and understanding. If they
are, then their views should be valuable outside as well as inside the
Bureau. If they are not, then no attempt to avoid drawing conclusions
can compensate for such lack of basic competence.
The results of the FBI's policy of keeping its conclusions to itself
are threefold.
First, there is less opportunity for the Bureau's viewpoint to be
challenged by others. Discussion may take place occasionally within
the Bureau; but it is not comparable to the give and take among, for
instance, the various foreign intelligence agencies.
Second, agents do not have strong incentives to produce sophisti-
cated evaluations and to develop the kind of expertise needed for
doing so. Investigative and administrative skills are rewarded,
rather than thoughtful insight and analytical talent. James F. x\hern,
former New Haven police chief and member of the Scran ton Commis-
sion on Campus Unrest, observed recently that the FBI has "a
419
tendency to gather information mostl}^ from local sources and to
do very little sifting between rumor and hard intelligence." In his
book, "Police in Trouble," he identifies weaknesses in reporting
and how they led him as chief of police m New Haven when they
were confronted \\dth difficult situations to virtually disregard the
FBI's intelligence and to rel}^ instead upon his own intelligence
and those of other pohce departments which he felt more flexible
and concrete and to the point. Indeed, there have been other law
enforcement officials Avho have rendered similar complaints, in deal-
ing Adth the demonstrations at the national conventions this summer,
and they found the FBI's intelligence absolutely useless and found
themselves relying on other sources, primarily local police agencies,
for distinguishing rumor from hard intelligence. Roger Wilkins,
former director of the Justice Department's Community Relations
Ser^dce, has recounted similar experience with Bureau intelligence
reports.
Third, without benefit of FBI evaluations, the Justice Depart-
ment's analysis units must operate in isolation from the experience
of men in the field who deal with events at first hand. They as well
as the Bureau are handicapped by the absence of an exchange of
A-iews. The same lack of contact existed until recently between
the FBI and the foreign intelligence agencies of the Federal
Government.
To summarize : the FBI's intelfigence system appears to be founded
on out-of-date assumptions. Isolated from external supervision and
interchange with, other agencies, the Bureau failed to reexamine its
operations in the light of contemporary conditions. Responsible
authorities have not fully considered the FBI's information gathering
and retrieval practices, its handUng of sensitive security intelligence
data, its use of informants and covert pohtical action. These issues
involved both the FBI's competence as an intelfigence agency and
its impact on individual privacy and political hberty. If the Bureau
is to adjust to the 1970's, these matters must receive careful attention
from Congress as well as within the executive branch.
Among the questions that need to be considered are the following:
(1) Under what specific authority does the FBI conduct domestic
intelfigence operations or maintain intelfigence files?
(2) Wliat is the manner in which and the methods by which these
activities are being conducted?
(3) Which other governmental agencies are conducting domestic
intelligence programs?
(4) What are the reasons for the intelfigence gathering; that is,
what criteria are used to determine that individuals or organizations
should be watched or that files on them should be opened? If cntena,
as such, do not exist, what activities, events, or statements trigger
intelligence gathering?
(5) What kind of information is being cofiected and compiled.''
(6) How is the information stored, safeguarded, used, and distrib-
buted? . T 1 J .0
(7) Who has access to the information, and who does not.^
(8) Consider not just the FBI, but also those agencies which re-
ceive FBI reports. What are the patterns and scope of information
swapping within the Government, among levels of government, and
mth nongovernmental entities?
420
(9) Should the FBI accept and acknowledge formal authority to>
make recommendations and draw conclusions on the basis of intelli-
gence data and its agents' expertise?
(10) What safeguards govern the FBI's practices with respect to the-
placement or cultivation of informants and sources?
(11) What impacts, if any, do domestic intelligence activities have
on the privac}^ and liberties of individuals and organizations?
(12) What measures are taken, might be taken, or should be taken
to insure that privacy and freedom are safeguarded and that legitimate
governmental needs are served? How do the various alternative mea-
sures compare to each other? Wliich would best serve the values our
society seeks to protect?
This committee has at least three choices in proceeding to establish
a mechanism for congressional oversight of the FBI.
First, it might recommend that the President and the bipartisan
congressional leadership appoint a Special Advisory Commission on
Domestic Intelligence composed of Members of the Senate and House
of Representatives, officials from the law enforcement and intelligence
commumt}^ and individuals from the public sector. In order to protect
sensitive information and operations, the Commission should have a
qualified staff authorized to conduct a confidential study of the details
of domestic intelligence work. The Commission's inquiry- should pro-
ceed with careful deliberation through closed hearings, preparation of
an interim report, public hearings, and issuance of a final report analy-
zing the strengths and weaknesses of various proposals and making^
recommendations to the President, the Congress, and other interested
oflBcials. Not less than 4 years should be allotted for the completion of
its duties.
On the other hand, this committee might attempt to use the present
hearings on the nomination of a permanent Director for expanded
oversight. Director-designate Gra}^ could be requested to share with
the committee the results of his o^^^l internal revieA\' of FBI functions
and the various alternative plans for the future developed by his
subordinates during recent months. This would require length}^ closed
hearings and confidential staff work extending over the coming weeks.
These hearings would inform the committee in greater depth about
the Bureau, as well as provide an opportunity to apjirise the Director-
designate of the committee's reaction to his plans. This form of over-
sight could be regularized by adopting a statutory requirement
that the FBI Director be subject to reconfirmation after 4 years
in ofiice.
However, neither of these choices may be feasible. The President
m.&j be reluctant to participate in establishing the Commission. And
the present hearings may be too unwieldy, focusing as they do on
specific incidents and the nominee's qualifications rather than mainl}'
on the FBI's institutional character.
Therefore, a viable middle approach may be for this committee tO'
create a permanent subcommittee for overseeing the FBI. That
subcommittee could follow up the present hearings with an extended
study of the Bureau, focusing especially on the need for legislation
authorizing domestic intelligence programs and the issues involved in
intelligence operations. The subcommittee need not conduct an
immediate public investigation of the FBI. Through closed hearings
and with the aid of a qualified staff, it could accomplish much the
421
same thing as an advisor}^ commission during the years ahead. \Vliat
is essential is cooperation from the FBI itself. This is a long-term effort
requiring the fullest access to information about Bureau functions.
The subcommittee must develop the specialized expertise needed
for analyzing complex problems.
Mr. Gray has indicated he believes this is the committee for over-
sight of the FBI. He believes he has an obligation in working wdth this
committee, but this committee must respond to that offer with the
mstitutional mechanism wliich mil make it effective.
The present hearings have demonstrated that the FBI Director is
entrusted with enormous powers — perhaps too much for any one man.
Over the past 50 years America was fortunate to have in J. Edger
Hoover a Director who cared more for protecting the interests of the
Bureau, not for the advancement of a political leader's ambitions. But
Hoover was truly unique. Congress ought not wilhnglj^ grant such
powers to another man, especially one having a background of political
mvolvement, without retaining significant oversight. No agency of
Government should be immune from congressional review, and no
future FBI Director should avoid the obligation of providing sufficient
confidential materials to an appropriate congressional body for
responsible and constructive analysis.
Thank you, Mr. Chairman.
Senator Hart. Thank you very much, Professor EUiff.
This, as j^ou remind us, is indeed the first time that suggestions as
wide ranging as those you have presented have been presented to the
Congress, at least to this committee. I think each of us would like to
examnie his own conscience to see what we desire and if we can identify
that we must figure out the way to achieve the desirable way.
I have some immediate reaction to some of those suggestions but I
should let myself have more than just the hour we have had here.
On page 21 of your prepared statement, you mention the activi-
ties of informants. From your inter\dews and studies, do you have any
impression that there is a widespread practice for informants to use, for
example, forged letters and to engage in sabotage activities within a
group of extremists? What would you guess is the frequency?
]Mr. Elliff. It would be really impossible for any outsider to know.
For example the Ku Klux Klan in Mississippi was selected in 1964 as
a target for this, and Don Wliitehead has written a book apparently
based on FBI sources about the FBI's assault on the Klan in Missis-
sippi after 1964.
Once a group is chosen the Bureau seems wilfing to go all out in terms
of using its resources to bring about these ends. How many groups
have been so chosen, whether any other group than the Klan has been
so chosen, I cannot document for the committee. I have the befief that
at least one or more groups have been chosen for that purpose.
Senator Hart, I have the impression that I have read that dis-
ru])ters, who were in fact agents, joined certain of the peace groups and
peace demonstrations. Have you found that?
Mr. Elliff. The Bureau itself has been concerned about its in-
formants going overboard in provocation. One of these stolen docu-
ments in Pennsylvania, for example, was a memo prepared for the
Philadelphia field office after one of the agents came back from a
•conference in Washington.
422
If I might read it — incidentally I obtained these files by going
around to reporters and sajang, "Will you give a political scientist a
copy of these memos." I have tried to keep them confidential in terms
of the names mentioned in them.
This memo read:
Again on the subject of informants, there have been a few instances where
security informants in the New Left got carried away during a demonstration,
assaulted poHce, et cetera. The key word in informants, according to Bureau
supervision, is control. They define this to mean that while our informants should
be privy to everything going on and should rise to the maxim vim level of their
ability in the New Left movement, they should not become the person who carries
the gun, throws the bomb, does the robbery or by some specific violative overt
act becomes a deeply involved participant. That is a judgment area and any
actions which seem to border on it should be discussed presumably between the
informant and his control agent.
When you are dealing with the so-called "Tommy the Traveler"
incident in upstate New York and other cases where informants have
apparently been engaging in provocative activities, it is very difficult
to say that the Bureau has instructed them to do so and to document
that. Some informants have claimed they have been so instructed.
It is very difficult to get firm documentation.
My belief is when it came generally to new left, the way the Bureau
categorized new left, peace movement, and so on, that the Bureau
followed these policies of control of their informants; but when one
dealt with a specific organization that the Bureau felt was excep-
tionally dangerous to national security, then the techniques of frag-
mentation, covert letters, all kinds of disruptive methods might very
well be used.
Agent Wall who left the Bureau and has written his reflections on
being an FBI agent has stated that more was done in the new left
field. What I am concerned about are not these methods which I
believe have been general violation of Bureau pohcy, but the focused
attention to certain specific groups. If I may cite one group, the Black
Panther Party has been treated by the FBI as they treated the Ku
Klux Klan, and the methods and concentration and attention they
gave to the Klan they have given to the Black Panther Party. This is
something very focused. I believe there must be high level deliberations
in the Bureau over this. That differs from the kind of random harass-
ment that might take place in the field offices in dealing with new
left activity generally. This is my impression, my judgment.
Senator Hart. Do I understand you, though, to say that the
activities that you described, the sending of letters purporting to be
signed by black leaders here in Washington — that this was an activity
that violates the rule?
Mr. Elliff. That is my impression. It may have been done. But
I don't beheve it would have been done pursuant to instructions from
the Domestic Intelligence Division of the FBI to the field office. I
think that if it was done it was probably by the field office on its own
initiative.
Senator Hart. That excerpt from which you read reminds us of a
very grave problem, hke you say, they want to discuss the problem
of how far is too far in terms of being more than an observer.
I said I should not react to your suggestions without more than the
hour we have had here, but you suggest in conclusion that an over-
sight subcommittee of this committee might be established to review
423
the bui'eau and its acti^dties, objectives, performance. Have you given
thought, assuming such a subcommittee were created, as to how it
would operate and specifically how would you determine what access
it should have to confidential Bureau documents?
Mr. Elliff. This, of com'se, is a serious problem. The special com-
mittee chaii'ed by Senator Er\an which is going to look into political
espionage acti\aties, Watergate and so on, is going to have complete
access to all the raw data pursuant to a resolution by the Senate which
has requested that this access be given.
My analysis of the Bureau's operation suggests that there is a dis-
tinction between the raw investigative data wliich the oversight
committee need not see, need not have access to, and the instructions
that go out from the Domestic Intelligence Di^dsion or the General
Investigative Division or the other divisions to the field offices which
request the initiation, for example, of a sweeping survey of a particu-
lar type of group because there might be some contact with extremists.
There is this form of information, confidential information surely, but
not the raw investigative data which can ver}^ well remain in the FBI.
This range of information with respect to policy and procedures,
these types of memoranda and instructions to the field offices relating
to specific investigations or specific categories of investigations, should
be exammed by an oversight subcommittee to obtain an understanding
of the working procedures of the Bureau.
I have seen a limited amount of FBI information, a Hmited amount
of FBI working memoranda. I may be wrong, but certainly discus-
sions A^th the Bureau can help clarify this difference. There appears
to be this kind of distinction, and these internal administrative re-
quests and instructions that go out from the Division to the field
offices ought to be a focus for the committee in order to understand
the routine operations of the Bureau.
Senator Hart. I think we can ask Mr. Gray — without turning the
pages of a confidential document, without citing a specific paper, and
acknowledging that it may have been an aberration, but that nonethe-
less appeared to be going on — whether he has made any reforms in
the Domestic Intehigence Operations since he has been in.
Mr. Elliff. I think Mr. Gray is already on the record in this respect.
He was quoted in Life magazine as saying that he believed he would
continue the domestic intelligence poUcies of the past. From Life
magazine of October 13, 1972, Mr. Gray is quoted as saying:
The FBI's controversial policy of surveillance of potential subversives, for
example, will not change even though legitimate dissenters will be included.
It seems to me that is one of the few indications we do have.
We also have a speech that Mr. Gray defivered in Mississippi soon
after taking office, in which he says:
Under Executive directives and laws of the Congress the FBI will continue to
investigate acts bv individuals and organizations that threaten the security of the
nation and rights and freedoms of the citizens. This is an area which I expect to
draw the heaviest salvos of protest and complaint because those who would alter
drastically our form of government must and will remain vehemently opposed to
the work of the FBI in 'ochalf of all American people.
1 was disturbed when I read that because I felt he was tendmg to
associate those who wished to criticize the FBI's intelligence opera-
tion, to suggest constructive criticism of it, and to do so not in any
424
sense of criticizing the Director as an individual or the Bureau as an
institution, with those who want to drastically alter our form of
government. I could only conclude that Mr. Gray's statement was
totally defensive on intelligence methods.
So I am troubled that Mr. Gray has not in any sense addressed
himself to these difficulties. Perhaps there is only one instance when he
did so, and I am reluctant to go into that, regarding the special agent
in charge of the Washington Field Office who, according to the press,
failed to report accurately on an incident that occurred at a demon-
stration here in Washington where an FBI agent was apparently as-
saulted by demonstrators. Mr. Gray asked for a report on this incident
and the special agent in charge of the field office did not pro\'ide what
Mr. Gray thought was tn accurate report. He had the inspection
division do an independent inspection and found apparently the true
story which conflicted with what the field office had reported to him.
I think Mr. Gra^' is getting a sense, at least by that incident, that
what he hears from the field in the matter of intelligence is not neces-
sarily what happens, and that there are problems, especially when it
might embarrass the Bureau to Ijave the information about an incident
be revealed, even within the Bureau to the Director of the Bureau
himself.
So I think he is coming to understand some of these problems.
Some journalists who have had interviews with him believe that after
the confirmation hearings, when he is on his ovv^l, when he has the
strength to really take action intenuilly in the Bureau, he may be
able to engage in this kind of reconsideration of what is the most
sensiti\'o FBI function in terms of national security.
On the record so far I cannot say Mr. Gray has done anything
significant with respect to domestic intelligence. He seems merely to
be keeping estabhshed patterns of practice including giving patriotic
speeches which condenm extremists, which I feel are counterproductive
and could have a chilling effect. Still, I am not certain that he would
not, if he were confirmed, undertake to reexamine some of these
assumptions that the FBI has been operating on for 30 years without
reconsidering. He is an intelligent man. He is a man I believe with
good intentions. I am not taking a position on whether he should be
confirmed or not. I don't believe he is the best man for the job. I
beheve it should have been a court of appeals judge or someone like
that but you can't always pick and choose your appomtments.
Senator Hart. We will leave that question hanging and go to
Senator Hruska.
Senator Hruska. Mr. Chau^man, Senator Tunney wished to be
recognized.
Senator Tunney. I have a statement to make, Senator. Why don't
3^ou go ahead with your questions first.
Senator Hruska. I shall not be long.
Mr. Chairman, I am sure that you have found the witness to be as
pleasing, engaging and articulate a witness as we have had in a long
time. I have listened to him with gi-eat interest. His style of writing
is also articulate and reasonable. Those attributes are appreciated by
all of us.
In his statement, however, he does say at the beginning:
My purpose today is not to discuss the qualifications of L. Patrick Gray for the
position of FBI Director, but to urge this committee to use these confirmation
hearings to begin the examination of the FBI as an institution.
425
The text of the statement and its substance bears out this stated
purpose.
It is clear that m spite of the testimony being interesting, however,
and it is interestmg, that this is not the time and ])lace to consider the
bulk of the testimony given by this witness. There should be reserxed
for a future time, it seems to me, questions that v/ould be directed to
its substance and to its accurac}^ and to some of the factual cases
that are cited, some apparent inconsistencies that this unpractieed
eye of mine has already detected, as well as the merit of some of his
recommendations.
I was pleased toward the end of the statement when the witness
said perhaps the present hearings may be too imwieldy to go into these
matters focusing as they do on the anomalies rather than the FBI's
character.
I want to congratulate you, Dr. Elliff, on your paper and to many of
the insights you have into the FBI. We do have a task at hand. I
don't know how much time it would take to evaluate and restructure
the FBI. I have an idea it would be a lengthy process. In the mean-
time, we presently must consider the qualifications of an individual
who has been nominated to head the FBI. We must do so in order to
stabilize that great national role which the FBI does constitute in
law enforcement. Maybe the FBI's role can be improved. I am
confident it can, I am confident it will under Patrick Gray. There
may be some limitations that Mr. Gray will encounter that will
necessitate statutory approval and modification in which I believe
this committee shoultl involve itself at a later date. But, in the mean-
time I do want to say that I appreciate your appearance here and the
very judicious fashion in which you have presented your recommenda-
tions and observations.
Thank j^ou for coming.
Mr. Elliff. Thank you ver}" much, Senator.
May I respond?
Senator Hruska. You may, indeed.
Mr. Elliff. I was here last week for the first 2 days of the hearing
and I did feel Mr. Gray, in his opening statement, presented for the
committee a record of 9 months in office.
If I may refer to that statement, in appendix A, he says, "These are
the avenues of inquiry that I began mth," 13 avenues of inquiry,
and then at the end of his statement, he identifies 32 changes in FBI
policies and procedures that he has adopted from May 3, 1972, to
March 3, 1973. It seems what he was doing by offering this to the com-
mittee was suggesting to the committee that certainly you may want
to look at Watergate and certainly you may want to look at some
particular incidents, a couple of speeches I gave last summer, last fall,
you may want to look at those and legitimately so, but I am suggesting
if I should be evaluated it should not be on the basis of one major
special investigation or certainly in terms of a few speeches I gave, but
rather in terms of all I have done as acting director of the FBI.
It seems to me this committee may not want to consider all the
proposals for change in the future, but it ought to take up Mr. Gray
and inquu-e at least to some extent into what he has done in the past.
He has been there for 9 months and he has done more than the Water-
gate investigation and more than making some speeches.
426
There is, I think, an area between a full scale, long term inciiiiry — I
suggest 4 years at the minimum, to do a job on understanding' and
reorienting the FBI — and what I believe is a legitimate concern of this
committee now in what he has done in his planning and evaluation
agency under Mr. Baker and ^\hat kind of plans he has. He is de-
liberating on these matters and this committee does have an occasion
to consider more than just a few isolated instances. I think certainly
your decision on whether to s\ipport Mr. Gray or not ought to be made
on the basis of his record as Acting Director for 9 months. Has he done
a good job? Watergate is one of the issues, the public speeches are
another part of it, but there is a lot more he has been doing for 9
months.
Senator Hkuska. I am glad to hear you speak that way. It confums
my own observations during these hearings, particularly those yester-
day. I wish to point out that we have had 53^ days when Mr. Gray
occupied that witness chair, and I will leave to you who have been in
the audience to determine just how much time was given to considera-
tion of the overall constructive, thorough and professional manner in
which Mr. Gray has performed his job, as indicated by this wdtness.
Unfortunate!}", other alternatives were considered and adopted and
pursued, with the hearmgs going into matters which in my judgment
do not have a bearing upon the present mission of this Judiciary Com-
mittee. However, I do want to thank you again for being here Dr.
EUiff.
I have no further comments, Senator Hart.
Senator Hart. I do agree with Senator Hruska as to your style of
writing and your speech. It was enjoyable as well as informative.
There have been some of us who earlier in the hearings had some
questions and still have with respect to the structure and the functions
of the Bureau and have not yet asked them. I must, on the record,
confess that I have been absent much of the time but that is because of
other hearings on equally important matters, among them campaign
financing which is not unrelated to Watergate.
I am sure that before we close the record here those questions with
respect to structure and functions of the Bureau as Mr. Gray sees them
will be explored. We hope the record will be full, and you have indeed
given us a number of specific suggestions.
Senator Tunney.
Senator Tunney. Thank you, Mr. Chairman.
Just one point on that. I recall spending approximately an hour and a
half questioning Mr. Gray with respect to the structure and functions
of the Bureau. Senator Hruska was here at that time. I questioned him
about wiretapping. I questioned him about keeping files. I questioned
him about surveillance, the procedures that they used, questions about
informants, the budget of the FBI, whether it ought to be a lump sum
budget or a line item budget, questioned him about many of these
areas and I thought Mr. Gray handled himself very well, as a matter of
fact, very well in reply to those questions.
After questioning him on those points I told him that I had no
objections to his confirmation except as it related to his political con-
nection, that I thought he had the intelligence and that his answers to
the questions on organizational structure were forthright, but with
respect to political structure I have some very serious doubts.
427
It was brought to my attention a few moments ago that John Dean,
the same John Dean to whom was sent the information given the FBI
in strict confidence to avoid the scrutiny of the CRP lawyers, that this
same John Dean was actuallj^ the one who brought Gordon Liddy to
CRP headquarters in December 1971. He recommended Liddy for the
job as counsel and told the CRP Director that Liddy would be par-
ticularly good, and I quote, "for intelligence work." After that meeting
between Dean, Liddy, and Jeb Magruder, Liddy was hired for the
position that included his functioning in the Watergate conspiracy.
So John Dean himself was the one who put Liddy in that position.
Jeb Magruder testified to these facts under oath in January 1973.
Presumably he was asked the same questions by the FBI and gave the
same answers to the FBI on July 20, 1972, the very day before Mr.
Gray changed liis previous policy and agreed to provide the sensitive
investigative materials to Mr. Dean on the Wliite House staff.
If Mr. Gray bothered to check on July 21, whether John Dean's
name had come up at all in the investigation, he would have found or
should have found that John Dean got Gordon Liddy, Liddy 's job at
the CRP. That would have totally disqualified Mr. Dean from access
to any, let alone all, FBI files and data.
I believe no action should be taken by this committee on the con-
firmation of Mr. Gray until we have a com])lete explanation from
both Mr. Gray vivJ. Mr. Dean before this committee under oath.
I am sorry that this matter did not come to my attention yesterday
Avhen Mr. Gray was on the stand and I had an opportunity to ques-
ti"r. him f'^r r,T^proxini;\te]y v.n hour and a half, but it came to my
attention after the lunch hour today. I quote from Mr. Magruder's
SAxorn statement in the file:
As I recall, Mr. Liddy came over to the committee on Friday in December
somewhere. At that time we were in the process where we had two situations that
had to be handled on a full time basis. One we were reviewing a fairly compli-
cated fihng law in many states and, secondly, with the new election law was on
its way through the Congress and we needed to get ahold of what that legislation
meant to our campaign. So, I can ask that John Dean, if he could find a lawyer
to handle these problems for us on a full time basis, that we would be using law-
yers on a part time basis and John recommended Mr. Liddy on a Friday, Mr. Liddy
began the following Monday.
Then further on in the transcript in response to another question
he said:
This is Mr. Magruder, as I recall, either John or myself, not myself, John or
Mr. Liddy mentioned it. We talked about his FBI background and we did dis-
cuss the I'jotential opportunities if we had an investigative problem, and intelli-
gence gathering problems, that if Mr. Liddy 's background would suit that type
of work,
I would like to suggest, Mr. Chairman, that it is clear, from \\hat
we have heard in the w&y of testimony so far, that Mr. Dean had an
omnipresence during the course of the FBI investigation of the
Watergate. He had 82 reports, files, sent to him regarding the inter-
views by the FBI of A\itnesses, including three, apparently, that did
not \xant to be interviewed by the FBI in the presence of C!RP at-
torneys. He also sat in on all the FBI interrogations of Whito House
witnesses. Yet this same Mr. Dean was the one that had gotten
Liddy his job and Liddy was one of those under investigation by the
FBI. I think this is most jDcculiar and it is something which has got
to be cleared up before this committee can possibly consider actmg
428
on the con&mation. I think it means we have to have statements
under oath from Mr. Dean.
Senator Hart. I would not anticipate unanimous consent on this
committee ^^■ith respect to your suggestion but I think the sugo-estion
is sound.
I have to confess, having been absent from part of the proceedings
here, that some of the information you have just included in your
statement I was not aware of, and I am sure that others, ^\ho sim-
ilarly have not been able to follo^^' this closely, may feel it an obliga-
tion to resolve the question 3'Ou raise; namely, if Mr. Dean obtained
employment for Mr. Liddy
Senator Tunney. Mr. Liddy was employed at the CRP as a result
of Mr. Dean's conducting^
Senator Hart. Perhaps I overstated Mr. Dean's influence in Mr.
Liddy 's success in getting the job, but if Mr. Dean brought Mr. Liddy
in as the lawyer that he suggested could handle the "problem, and
later the same lawyer was under investigation for an alleged serious
crime, I would want to know why that investigation should be revealed
in detail to Mr. Dean as it went along, including the investigation of
Mr. Liddy. I think we ought to have that.
I was a U.S. attorney for a little while, and assuming the Bureau
knew of this employment arrangement at the time of its investigation,
I w-ould think it requires an explanation from Mr. Gray and Mr. Dean
as to why Mr. Dean remained a party to the development.
Senator Hruska. Would the Senator yield?
Senator Tunney. Yes.
Senator Hruska. The matter brought to our attention by the
Senator from California is of interest. I think there will be a lot of
people who will want to know about it and legitimately so. I just
wonder if this is the forum. We have witnessed the injection of ex-
traneous matters before in these hearings. Yesterday afternoon we had
headlines in the local press about Segretti with such intensity that one
may have wondered if Segretti had' been substituted as the nommee
for the Directorship of the FBI in the place of Louis Patrick Gray III.
I wonder if we can anticipate a rash of headhnes either later this day
or tomorrow morning substituting Liddy or John Dean as the nominee
for the Directorship of the FBI.
All things to their own. We are here concerned for the purpose of
considering the quahfications of \h'. Gray.
Wliat Mr. Dean might have done, by hiring Liddy and pursuing
the nefarious and wicked things that exist in the minds of some people,
is something that the Senate has decided that Senator Ervin and his
committee will go into.
I think the American i^eople will wonder and want to know about it.
But I wonder if we should not give some earnest consideration as
time goes on to the relevance of these questions, to the qualifications
of Louis Patrick Gray III, and also to the workmanhke job that he
did in pursuing the investigation of the Watergate incident as compiled
in his report.
Senator Tunney. If the Senator would yield on that point, the
question is how workmanlike the investigation was. The FBI in-
terviewed Mr. Magruder on July 20, Mr. Gray sent the memo to Mr,
429
Dean on July 21, the day after the FBI interviev*-e(l him, and it woidd
seem to me that this relationship between \It. Dean and Mr. Liddy
would have shown up in a thorough investigation the same way it
did in the trial when Mr. Magruder made Ids statement under oath.
I am very deeply concerned about the question of Mr. Gray's
independence. I in no way attack the integrit}^ of Mr. Gra\ , but this
does seem to me to bear directly upon his independence, as Director
of the FBI, from political pressures and from the aura of pohtical
power surrounding counselors from the White House.
It does seem to me that is it ver}^, very relevant, this matter, to the
confu-mation of Mr. Gray. The main charges against Mr. Gray, as I
understand them, at least the main charges that have significance for
me, relate to his political involvement and his lack of independence
from political appointees, namely, from the White House staff.
I feel very, very strongly that we ought to have better information
on this.
Senator Hruska. If the Senator will yield further. When we con-
sider what has been done in a workmanlike wsly under Acting Director
Gray, it seems to me that we ought to scan that file and take into
consideration that it is the work of over 330 agents, over 1,500 inter-
views totaling many thousands of pages. I don't know how many
thousands — they are recited in the record — of manhours that have
been put into it. However, the reports reflect that a sincere, honest job
was made to try to assemble all the pertinent facts.
Of course, it is not a complete record to go into the hands of a prose-
cuting attorney in order for him to start drawing indictments or
charges before a grand jury. As in any case the district attorney would
have to study the reports and determine what additional facts he
would deem necessary and pertinent for the purpose of prosecuting
any criminal trial.
The fact is the investigation report compiled by Mr. Gray is a
complete and thorough and sincere effort to get at all the facts that are
available. Now, I venture to say there will be other things, a year from
now, 3 years from now and 5 \ears from now, whicli will appear.
Hindsight is perhaps always clearest. However, the fact is Mr. Gray
prosecuted his mission as fully as could be done.
The intimacy suggested between Mr. Gray and Mr. Dean because
Mr. Gray supplied Mr. Dean with a summary report, seems to nie that
is no foundation for declarmg intimacy or improper relationship.
Whoever was m Mr. Gray's position would have responded in similar
fashion because that is the natural and normal course of communica-
tion between the White House and the Department of Justice and the
FBI.
But I agree with the Senator from California that it is an item that
should be thoroughly canvassed and explored. However, let us have
some respect for the forums that are involved.
Senator Tunney. Mr. Dean was interviewed by the FBI, as I
understand it, on June 27, on Jul} 7, and July 8, and Mr. Magruder
was interviewed on July 20, and these documents
Senator Hruska. Of what year?
Senator Tunney. 1972. The fu-st report went to Mr. Dean on July
21. 1972, and subsequently Mr. Dean sat in on all interviews of White
House witnesses and was sent the summary of 82 other interviews.
91-331 — 73 28
430
It seems to me that Mr. Gray ought to have determmed whether or
not the man to whom he was turning over all this information was in
fact associated in some way with one of the men who v.as a suspect
in the case under investigation. If he did not, it would seem to me to
indicate that he was so under the influence of the aura of power
surrounding the White House staff that he was not independent as an
FBI dii'ector should be, the way I think i). Edgar Hoover would have
been. I would like to ask the Senator if he would feel any differently
if this kind of case w^ould come up with a Democratic President and a
Democratic counselor?
Senator Hruska. I would suggest there was no reason to believe at
that time there was a close connection. Had there been such kno\\ledge,
I have every confidence that Mr. Gray would have taken that factor
into consideration in his conduct. I would also suggest that in proceed-
ing in matters of this kind there is not a presumption of an error of the
ways of official sources as high level as Mr. Dean, rather there is a
presumption that no such condition prevails.
Looking at it from this standpoint, I say this question is a new
flyspeck recently discovered. I don't mean to say by referring to it as
a flyspeck that it is not important and should not be pursued, but
rather to define its relative size. Here is a small item of information
that should be evaluated not in the light of things that happened in
July and August, but in the light of what we find. We have listened
to Mr. Gray here for 5 days. I think everyone is impressed by his
sincerity, his judgment and integrity. Had he known of this alleged
relationship or had an}' reason to believe that there might be some-
thing like this, he would have taken it into consideration and pursued
it and acted accordingly.
Senator Tunney. What would you say if on July 20, v.dien Mr.
Magruder was interviewed, the record would show that the inter-
views brought out the fact that Mr. Magruder stated that Mr. Dean
brought Mr. Liddy down to the CRP?
Senator Hruska. If that fact were there that would be something
we should take into consideration to be sure. One way to do it is to
spend 6 or 8 hours in the files over there at the FBI office. I studied
the files myself and I might add that I was not permitted to make
notes.
At one juncture I did take out my pencil to ])oint to note something
on the page and the agents bristled a little bit and they didn't get
over their nervousness until I put my pencil back in my pocket. The
point is, however, the way to get over this suspicion is to go to the
FBI office and read the file yourself. By doing so a lot of the things will
-clear up, a lot of the fog that is being manufactured will disappear.
Senator Tunney. W^e can in that record certainly read the interview
of Mr. Dean with the FBI of June 27, we can read the Jidy 27 inter-
view and 28 interview and the FBI interview with Magruder on
July 27.
One of the things we will not be able to read is the personal con-
versations that were had between Mr. Gray and Mr. Dean on the
telephone. That would not be a part of the file.
So I think certainly it is incumbent upon me to go and read those
four interviews, but I also think it is incumbent upon Mr. Gray and
yh. Oean to testify under oath regarding this matter. Even if the
diles do not contain this particular information, we do not have on the
431
record any indication of what took place in the personal conversation
between Mr. Dean and Mr. Gray at this time or prior to the time that
Mr. Gra}^ made all this information available to Mr. Dean.
I think it is more than just a flyspeck, because you see, Senator, I
feel the Director of the FBI is one of the most sensitive jobs in the
Government. I feel that we need a man there who, ^^ e can be absolutely
confident, is divorced from politics and the pressures of politicians,
immune from the i)ressures of Seixators and Congressmen and White
House counselors.
I think that this information is directly relevant to the point that I
have just raised about Mr. Dean's independence from political pres-
sures. I feel very strong!}^ that it is a matter that warrants the very
deep concern of all of us wlio want to maintain the FBI as an inde-
pendent agency.
You know as well as I do that if we start now to place in the position
■of Director of the FBI an appointee who is political in nature that as
each new admiidstration comes the President is going to choose his
own man. You are going to find that when the Democrats come in
Mr. Gray will be kicked out, and perhaps some political person will
be put in as Director at that time.
Then we would have a thoroughly politicized FBI which I kno\v you
don't want and I knoA\" I don't want.
Senator Hruska. If the Senator will jdeld I would like to comment
on two points he raised.
One is the absence and total void of political pressures. I don't
knou ho^^■ that can be created in this country. Innumerable times
■durmg his long and distinguished ca.reer Edgar Hoover was submitted
and did get exposed to political pressures. There is no question about
it. Even m my jiersonal record I can recite instances of that kind.
You cannot rid that of
Senator Tunney. Did he yield to the political pressure?
Senator Hruska. Did he yield? I will leave that question to you.
Man}^ of those ^^'llo have severely criticized the FBI freely indicate
that he, from time to time, did yield to political pressures. There are
•others who say no he didn't. It is a political world when you get into
that sort of discussion. There A\'ill never be a situation where a Director
of the FBI ^^•ill not be subjected to political pressure, because the
country and the world in which we live consists of a lot of those
pressures. I know of no way to v.ave a wand and comimand the dis-
appearance of such pressure.
Another thing I would like to comment on, I do trust my explana-
tion here of a flyspeck will not be magnified to a common ordinary
household word.
Let me suggest to the Senator tliat any investigative record of this
size consists of millions of flyspecks that have been sorted out and
classified and recorded as to only a part of them and the totality of
those specks are then found ui the form of a report and of an investiga-
tive document. So it is not in an undignified way to the item of infor-
mation that he brmgs to us. I referred, as I have already once ex-
plained, and I hope it will be known and read well, that that the term
was used to signify and describe the relative size of one fact out of
millions of facts that have already been considered m this investigation
and m this hearing.
432
Senator Hart. Professor Elliff , you have been witli us for some days
and it is now 5 o'clock, but could you comment, looking down the road,
and assuming there is no statutory change with respect to the Justice
Department and the Bureau. Suppose an allegation of impropriety on
the part of one or more White House personnel reaches the Justice
Department and the Bureau investigates and, unless we change the
law, the Department must make the decision to prosecute. Suppose
that it appears t'uit the President's peojile are in^-olved. Because of
the built-in suspicion which would attach to a decision not to pros-
ecute, is there a point at which Congress could move in and provide
for a special prosecutor who would not be the President's appointee?
Mr. Elliff. Let's assume that Warren Harding h.i.d not died when
he did and the Teapot Dome scandals came out. Tliere might be an
example. Could Congress have had an obHgation? I think Senator
Burton Wheeler would have pushed for that exercise of congressional
power. It would take a statute for a special prosecutor. There have
been those who have proposed that indeed the Attorney General be
made an office similar to the Comptroller General and have this
independent nature rather than being an office that is subject to the
regular appointment by the Presidency.
I believe the American Enterprise Institute did a study of the
Justice Department and proposed reconsideration of the nature of
the Justice Department, but for a specific purpose, certainly, it v/ould
be within the constitutional jjower of the Congress to establish an
independent prosecutor. Of course. 3'ou retain an indei)oiident judi-
ciary to consider the prosecution.
But in this instance, and I have attempted to follow this whole
matter during the course of these hearings, what disturbs me pri-
marily is that the President felt he could not rely solely on Mr. Gray's
investigation and decided that he had to direct his special counselto
conduct an inhouse investigation, overlapping the FBI's investigation,
but with some purpose to it. It seems to me, without an}^ accumulation
of flyspecks, that the appropriate response of the President — and you
can't call him to testify — is to turn to the man he has appointed as
acting Director of the FBI, who has committed himself to conducting
as thorough an investigation as possible, whose agents have the integ-
rity so that people are willing to talk to them and to tell them things
that they wouldn't tell anybody else, because they beheve in the
honesty of FBI agents. This kind of inquiry, reaching possibly into
the President's official family, would indeed best be conducted under
the supervision of the Director, or unfortunately at that time it was
Acting Director, of the Federal Bureau of Investigation rather than
a White House counsel being charged with the responsibility of
conducting his o^^^l investigation.
I remember when that happened last summer I was somewhat con-
cerned about this. Is there something that will be weak about the
FBI's investigation if the President feels he must have some other
inquiry conducted, rather than have Mr. Dean be in the position or
some other Presidential counsel to be in the position of when the FBI
investigation is fully completed reviewing its results to determine
whether or not it has produced information that the President ought
to know in terms of his official family? By injecting a Presidential
aide into the investigative process, the appearance, if not the reality, of
politicization of that process was bound to result.
433
It seems to rae that a question can seriously be raised — not on the
basis of an3^ of the specific details of revelations, but rather in terms of
this overall question as to whether or not a Director of the Federal
Bureau of Investigation ought not to ad\ase the President and sa}^ to
the President, "This will politicize the investigation. We are going to
do the job, Mr. President. You have appointed me to investigate
crimes, to investigate misconduct, and I can do it."
I assume automatic temptation of a President to have someone who
is intimately involved with him, who works with him on a day-to-day
basis, conduct some sort of an investigation. I don't know whether
vSenator Hruska understands my concern here. It is not based on any
flyspecks or the revelations that have taken place in these hearings,
but i" has to do with l^.:e overall structure of ^he way that investiga-
tion was conducted and whether Mr. Gray ought to have asserted
himself more strongly at that point.
My personal impression is that if it was a sin it was a sin of transi-
tion. He was a man new to his job, new to his responsibilities, an
Acting Director and not a full-fledged permanent Director of the
FBI, and that perhaps as permanent Director he would have said,
"Mr. President, I will conduct this investigation, I advise you not
to have an in-house investigation on your own. That mil only tend
to politicize an investigation wliich ought to be an objective, neutral
investigation."
Senator Hruska. Professor, in that historical example of President
Harding, I think you put your finger on a very important point,
because it illustrates dramatically the inherent part that politics
plays in our system of govermnent. Where could they turn in those
days for a nonpartisan, nonpolitical objective source to inquire into
that situation and prosecute President Harding, had he not died?
Would they have gone to the district attorneys? A fresh batch of them
out in the field, appointed by President Harding two years before
liis death? Woukl they have gone to the judges, some of them ap-
pointed b}^^ President Harding? Would they have gone to the non-
political, nonpartisan Congress, consisting of Democrats and Republi-
cans? Where would they have turned? You must turn some place. In
our present situation where will you turn now? You have to turn some
place. You turn to the FBI.
You heard Pat Gra^^ sa^' again and again as he testified here that
he determined at the outset of this investigation to pursue it to its
fullest. He said that he would not betray the position and the integrity
he possessed, and above all that he Mould not let down the people
Avho constituted the FBI.
Wlion he said that I was truly thrihed. Whoever would have said
that A\ith the ring of conviction in it should bring, except to the
most (".nical, a feeling that here was a most dedicated man.
Inherent in our government is the danger of the pohticalization of
our discussions. I have an idea that the fashion in which this hearing
is being held will contribute heavily to pohticalization of the FBI
if we are not careful. I have an idea these hearings might have that
effect and the conduct of the Senate ^dll bear heavily on what Mill
happen 4 3-ears from now, 8 years from now, 12 years from now
when we consider similar nominations to the FBI.
434
Air. Elliff. I would also hope that Mr. Gra3^ might learn and
future Presidents might learn from these hearings that when one
confronts one of these unusual situations, almost unique, of mis-
conduct near the White House, the Director of the Bureau ought
to explicitl}^ resist and the President ought to exercise the self-
restraint liimself not to attempt to duplicate the investigation being
conducted by the FBI. He should not attempt to inject into the
investigative process a man of his own as was done in this case ; and
if future occasions such as this do arise, when the temptation is there
to have a Presidential aide conduct an investigation that ought to
be in the hands of the FBI ,both sides shoidd resist that temptation.
Senator Hruska. In that regard, of course, we must always bear
in mind that there was not a scintilla of input into Mr. Graji^'s investi-
gative efforts contributed by Mr. Dean. Mr. Gray conducted his own
investigation pursuant to the well-established routine procedures of the
FBI. If there was duplication it was an overlapping, but there was
nothing that Dean did or said that found its way as input into the FBI
report. The President asked Dean to do that. I would conjecture — I
haven't talked to anybody about it — it would impress me as an effort
to insure the public that the President is not indifferent to the situa-
tion, that he wants not only the FBI to go in full force but he will also
make his own inquiry within Ms own household.
Mr. Elliff. My theory is that men do this out of fine intentions,
but often they are unaware of the consequences. It is vitally important
to realize the consequences as well as the original intentions. I hope
these hearings have helped to identify some of the possible conse-
quences in Mr. Gray's speeches or the conduct of this inquiry that
might not have been anticipated at the start, but that are now since
people are focusing on the Bureau, the Congress and the men really
who are doing the job. You have got to trust men to do the job that
they are assigned to do. But under our system of checks and balances
we don't just relv on men doing the job, we rely on this give and take
of a partisan hearing to uncover some of these consequences, so that
it is possible in the future that this kind of a check will make people
pause and be concerned about not only their good intentions but also
the results of what they do.
Senator Hruska. Thank you very much.
Senator Hart. Thank you very much.
We will adjourn to resume in the morning at 10:30.
Congressman Koch of New York will be the first witness and \nll be
followed by Mr. Joseph Rauh.
[Whereupon, at 5:15 p.m., the committee recessed, to reconvene at
10:30 a.m., Friday, March 9, 1973.]
NOMINATION OF LOUIS PATRICK GRAY III
FRIDAY, MARCH 9, 1973
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The committee met, pm-suant to recess, at 11 a.m., in room 2228,
Dii'ksen Senate Office Building, Senator Philip A. Hart presidmg.
Present: Senators Hart, Kennedy, Tunney, Hruska, Fong, and
Cook.
Also present: John H. Holloman, chief connsel, and Francis C.
Rosenberger, Thomas D. Hart, and Hite McLean, professional staff
members.
Senator Hart. The committee will be in order.
Our first v.itness this morning is the distinguished Member of
Congress from the 18th District of New York, Representative Ed-
ward I. Koch.
TESTIMONY OF EDWARD I. KOCH, A REPRESENTATIVE IN
CONGRESS FROM NEW YORK
Mr. Koch. Mr. Chau'iiian and members of the committee, I am
very appreciative of the opportunity to come before you to make
my statement in opposition to the confirmation of the proposed
Dii-ector of the FBI.
I woukl hke to Hmit my remarks to matters of which I have some
specific knowledge, rather than commenting on general procedures
used by the FBI in other cases.
My testimony concerns the information that has been collected by
the FBI on Members of Congi'ess.
I have some background in this area of political dossiers and infor-
mation that is being collected by the Government, not only by the
FBI but by so many other governmental agencies. In the 91st Con-
gress I introduced legislation which would open all Government files
to inspection by the individual on whom the files were maintained. If
my bill were enacted, each Government agency maintaining a file on
a citizen would be required to inform him or her of the existence of
such a file.
Most of the files are, I am sure, harmless — social security, income
tax. Veterans' Administration, to name a few, but some of them obvi-
ously are ones that deal with political matters. When I introduced
tliis legislation, I found broad receptivit}^ on the House side from
conservatives and liberals.
Conservatives said to me, "We support this legislation because we
believe in the constitutional process and we are not anxious to have
big brother take over the Government."
(435)
4-36
And liberals said, "We support it for that reason, too, but we
also want to see our files" — and under my legislation the files would
be made available.
Unfortunately, the legislation did not go very far in the House.
We did have a hearing on it, and there was a hearing in the ^Senate
before ^Senator Ervin's subcommittee. I am still pressing for the adop-
tion of that legislation, however. But I became intrigued when I
noted in the press that FBI Acting Director Gray had issued a state-
ment which was carried rather extensively by the press on October 27,
1972. I would like to read a paragraph from that news release. I
quote FBI Acting Director Graj^:
It has just come to my attention that since 19.'0, personnel at FBI headquarters
responsible for dealing with Congress have, as a matter of routine practice,
gathered biographical data on major candidates for the House of Representatives
and the Senate from newspapers, magazines, campaign literature and various
reference pubUcations. FBI field offices from time to time have been requested
bj- means of a routing sfip directive to assist by providing information that was
readily available from local files and local publications.
You would think, even if j^ou were opposed to the collection of
that kind of material, that it sovmds relatively harmless. But I
thought, well, I really ought to know what is in that file. So after
first consulting mth two of my colleagues, Benjamin Rosenthal
and Jonathan Bingham, we wrote a letter which I thought was
relatively harmless and said, on November 1, 1972:
Dear Mr. Gray : Having learned for the first time that there are dossiers kept by
the FBI on Members of Congress, we, the undersigned, request that those dossiers
relating to each of us be furnished to us.
We ask you to send our respective files to our offices immediately so that we
may examine them and ascertain exactly what it was that the FBI was collecting.
It was signed by mj^self, by Congressman Benjamin S. Rosenthal,
and b^r Congressman Jonathan B. Bingham.
I received the following response dated November 24, 1972:
Dear Congressman Koch: As you may know. Acting Director Gray recently
was hospitalized with an intestinal obstruction. We do not know at this time
when he will return to his office.
Your letter of November 1, 1972, was bsing given careful consideration prior
to Mr. Gray's hospitalization. You will appreciate the importance of your request
necessitates his personal attention; therefore, we are unable to predict when we
will be in a position to respond. I assure you that upon Mr. Gray's return we will
respond to your request as quickly as possible.
It was signed by Acting Associate Director W. Mark Felt.
Fortunately, Mr. Gra}-^ did recover fully and returned to his office.
On January 2, 1973, he sent me this letter:
Dear Congressman Koch: I regret that my illness followed by surgery has
delayed this response to your letter of November 1, 1972.
For your ready reference, I am enclosing a copy of my press release of October
27, 1972, announcing the termination of the FBI program of collecting biograph-
ical data on major nonincumbent congressional candidates.
The FBI does not maintain secret files or political dossiers on Members of
Coagress, and you will note tliat I neither stated nor implied that we do in my
press release. The creation of dossiers was neither the intent nor the purpose of
the program I terminated on October 27. Its purpose was to assist officials of the
FBI in the conduct of our relations with the Congress of the United States,
Let me describe for you the program that I ordered discontinued and how it
operated. I believe this will greatly enhance the understanding of this matter.
Around 1950, the officials of the FBI then responsible for dealing with the
Congress decided it would be most beneficial to them if thej' had some biographical
data on newly-elected members and a knowledge of any prior contacts by FBI
437
representative.s with these new congressmen and senators. Initially, they orally
requested FBI field office officials to furnish the desired information. In 1960 the
practice was begun of requesting such information by sending routing slips to the
various FBI field offices. This has been followed each election year since that time.
The information was gathered for our own internal use and not in response to
any regulation or statute. At first, information was sought only on nonincumbent
candidates for Congress. In 1960, the requests were expanded to include nonin-
cumbent candidates for governorships, since FBI officials also felt their contacts
with Governors could be enhanced by some prior knowledge of the individual's
background.
No investigation was conducted to secure this information, and no investiga-
tive file was opened either in the field offices or at FBI Headquarters. The biograph-
ical information was collected by individual agents covering the home area of the
candidate. It was gathered from local newspapers, campaign brochures, and ref-
erence books such as city directories or books which publish biographical informa-
tion— all sources readUy available to the general public. This information was
augmented by a summary of any data (already in the files) of the field office. This
might include correspondence exchanged with the candidate; memoranda con-
cerning personal contacts; results of investigations involving the candidate,
either as a subject, a victim, a witness, or a reference; or information voluntarily
submitted to the FBI.
The material collected by the field office was sent to FBI Headquarters where it
would be held until the results of the election were known. If the candidate was
defeated in his bid for office, all of the material submitted by the field office would
be promptly destroyed and no record of it kept. If the candidate was successful, a
memorandum summarizing the material submitted by the field office would be
prepared. Into this summary memorandum also would be incorporated a brief
abstract of any information already contained in the files at FBI Headquarters.
Here again, the information might include correspondence exchanged with the
candidate; memoranda concerning personal contacts; results of investigations
involving the candidate, either as a subject, a victim, a witness, or a reference; or
information voluntarily submitted to the FBI. The raw material forwarded by
the field office would l^c destroyed, and only the simimary memorandum would
be retained and incorporated into FBI files.
I am giving serious consideration and study to the ultimate disposition of
these summary memoranda.
So then I wrote another letter which read as follows:
January 10, 1973.
Dear Mr. Gray: I am delighted that you have recovered from your illness
and have returned to your duties.
I do appreciate j'our detailed response of January 2nd. Please do let me know
whether the three of us who requested our files from you were among those who
were included in the "FBI program of collecting biographical data on major
nonincumbent congressional candidates."
If I was included, I would very much like to see that fUe.
All the best for the New Year.
On Januar}' 24, 1973, I received the following response:
Dear Congressman Koch: Your letter of January 10, 1973, has been received
and I appreciate your kind comments about my return to duty.
As outlined in some detail to jou in my letter of January 2, 1973, the FBI
collected biographical information on major nonincumbent congressional candi-
dates beginning around 1950. At no time was an inve.stigation conducted on you
or any other member of Congress as part of this program.
The methods of collecting the information, the specific types of information
involved, and the methods of recording that information were all set out in the
January 2 letter. As I indicated in that letter, if the candidate was successful,
a memoi-andum summarizing the biographical information was prepared and
incorporated into FBI files.
Such recorded information retained by the FBI is subject to the regulation
and control of the Attorney General. It is not available for inspection except for
authorized purposes and then only on a need-to-know basis. Therefore, I must
decline j^our request.
438
I gathered from that that he did not think I needed to know about
my own file.
Tiien, durins: this committee's hearings, I became extremely inter-
ested iii one of the statements made by Mr. Gray, to be found in
the testimony taken on February 28, 1973. I will begin with a question
asked of Air. Gray by Senator Hart.
Senator Hart. Well, wouldn't the redtape and difficulty be warranties as a
means of insuring against that kind of hurt?
That was a reference to destroying the file.
Mr. Gray. Well, the Archivist is required to review material to be destroyed,
and I do not want people to read some of this rot that is in those files, that is
where the hurt comes in, and I am not going to, as long as I am the guardian of
those files, I am going to break my back to protect those files because'it is wrong
to let some of that stuff out. Somebody has got to read them. And once again
you get the question of who is going to do it. '
Now, that is somewhat at variance with the kind of information
that the Director furnished me because one gets the impression that
the information collected consisted of pubhc records, biographical
data, and material that appeared in the press — nothing that anyone
might take exception to, and yet the reference in his testimony is to
"rot" that he would not want others to see.
What I am suggesting is this: I make no personal attack on Mr.
Gray. People tell me he is a very estimable gentleman. But I do know
that there is sometliing wTong with a situation where Members of
Congress— and here were three of us — requested their files, simply to
see what it was that the FBI had been collecting, and were refused.
And when the refusal took place, it was based on a need-to-know basis.
Do not Members of Congress need to know? That is really the
conclusion of my testimony.
Senator Hart. As you were describing your exchange with Mr.
Gray, Congressman, I was tr3rhag to recall exactly what he told this
committee on this subject.
1 think in fairness I had better reserve an expression of opinion
until I have looked at that transcript to see whether my question was
clear and explicit and if there was a possibility of confusion, recog-
nizing that the preparation of the letter to you is more carefully
done than a response from the stand. That seems a disturbing con-
tradiction, but perhaps it is not.
Senator Kennedy?
Senator Kennedy. After reviewing the exchange of correspondence,
you definitely concluded then that they were keeping some kind of
file on you?
Mr. Koch. There was no question in my mind. Not only v/ere they
keepuig it, they were bent on concealing the file, at least prohibiting
Members of Congress from seeing it.
Senator Kennedy. And it is your impression that is a continuing
practice by the FBI, based upon the correspondence?
Mr. Koch. Well, it is my understanding from the press release and
from newspaper reports that the Acting Director has discontinued the
practice with respect to new mformation to be gathered. I accept him
at his word. But he has also made it very clear that the information
which he has is not being destro3^ed because of technical legal prob-
lems, and he is not making that information available to those against
whom it was accumulated.
4i39
Senator Kennedy. Your reservations about Mr. Gray then deal
with the procedures which he is following. The}^ have been past
precedents he has been willing to accept, and now he refuses to be
open about this type of request?
Mr. Koch. Yes, Senator.
Wliat I am saying is that havuig accumulated that kind of material,
it ought to, at least when requested, be made available to those persons
on Vvdiom it v/as gathered. Mr. Gray is making ver}^ clear that he does
not accept that poiiit of view, and in my judgment that disqualifies
him to hold the position.
Senator Kennedy. Do jou think anyone ought to be able to have
access to it?
Mr. Koc'-. W '1, m - legir.'itior on t-i.vt subject does the following
and it has two safeguards:
It provides that a record that is held by the Government shall be
available to that individual on whom the record is being gathered.
The safeguards guarantee that the names of informants will not be
available because that is an important matter to be protected, from
the Government's point of view, and there is a balance that has to be
struck. The Government is entitled to collect certain information. But
it must be subject to certain safeguards.
Second, if the agency determines that the matter in the file involves
national securit}^, then it shall not make that final determination but,
as a check on that, it must submit that recommendation to the
President. If he determines in fact that it is a national security matter,
he may say that that file shall not be displayed. But in order to make
certain that is not abused, my bill requires that there be a report to
Congress on the number of files vdthheld each 3'ear, agency-bj^-agency.
Now if, as a matter of national security, 2,000 files are withheld,
that may be understandable. If the President wi'hiiolds 2 million
files, then this countr}^ is in a lot of trouble.
Senator Kennedy. Did the FBI respond to your legislation? Did
they ever give an oi)mion?
Mr. Koch. Yes; the committee received a report from the Depart-
ment of Justice o])posing the bill.
The bill was the subject of hearings before Congressman William
S. Moorhead's Subcommittee of the House Government Operations
Committee.
Senator Kennedy. I want to thank you very much, Congressman.
I welcome you here. I have known you and of your work for a long
time and I know 3^ou have given great thought to this whole problem,
one which should' be of concern to all Americans. I think it is a point
V ell taken and I thanlt you for appearing.
Senator Hart. Senator Hruska.
Senator Hruska. Mr. Congressman, I want to add my hearty
welcome to your appearance here today. We have only one complaint
about the visits from the other body of the Congress and that is they
do not happen often enough. We always appreciate your coming and
adding to the record.
Mr. Koch. I shall come more often. Senator.
Senator Hruska. Mr. Congressman, you have referred to the
correspondence between you and Mr. Gray. Will you supply copies
of the letters for our record or have you done so?
440
Mr. Koch. Copies are attached to my prepared statement and I
have read them into the record in their entirety.
Senator Hruska. Your testimony is a real athlition to our in-
formation and we thank you for coming.
Mr. Koch. Thank you.
Senator Hart. Senator Fong.
Senator Fong. Congressman, I, too, would like to welcome you to
the committee.
I gather from one of the letters from Mr. Gray that they did not
collect information about you during the campaign.
Mr. Koch. Well, the way the language is set forth you cannot be
sure from that letter whether or not there is a file on me or on the other
two members who requested it. I believe, if you read it very carefully,
you come to the conclusion there was, simply because he says the
files will not be made available, and if they are not going to be made
available, they must be there.
Senator Fong. Did he not say he did not collect any material on
you during the campaign?
Mr. Koch. Well, not exactly.
Senator Fong. I thought I heard it that way.
Mr. Koch. Well^—
Senator Fong. That nothing was collected concerning you during
the campaign.
Mr. Koch. Let me see if I can find that for you. I do not think it
is that clear. Here it is. I will read the language:
As outlined in some detail to you in my letter of January 2, 197.3, the FBI
collected biographical information on major nonincumbent congressional can-
didates beginning around 1950. At no time was an investigation conducted'^on you
or anj' other Member of Congress as part of this program.
Now, he is very careful about that. There was no forma! FBI
investigation. But they did gather material and the material that
they gathered is not going to be made available to the three Members
of Congress who requested it. C*-
Senator Fong. Do you feel that any person on whom there is a
fi-le should have the right to see that file?
Mr. Koch. My legislation is very specific. It says that subject to
the safeguard of national security, which is further protected, as I
earlier described — where you can withhold the file if the President
makes that determination — any file with resj)ect to an individual
should be available to that individual for the following leasons: So
that he may see whether there is irrelevant or erroneous material ;
so that he may submit a corrective statement; so that he might apply
to a privacy board, which is created under my bill, for the removal
of the material if it ha])pens to be the rot, to use the word of the
Acting Director, that exists in some of these files.
Senator Fong. Would you say that they should not keep any files
at all?
Mr. Koch. No ; I do not say that. I believe there is a balance to be
struck. I believe that the FBI has the right to collect certain ma^^erial.
I believe that every Government agency has a right to coUect certain
material. It becomes a question of the balance.
In my judgment, it would be wrong to maintain political dossiers.
In fact, the acting Director specifically says that he does not maintain
a political dossier. But then it becomes a question of definition.
441
I believe, based on the fact that they are refusing to reveal these
files to three Members of Congress, that, in fact, they do have at
least three political dossiers and of course many more.
Senator Fonc. So vou are saying that if you ran for office, the
FBI should not have a file on you?
Mr. Koch. Yes; I am saying that. Simply beca'i^e I am running
for office the FBI ought not to take the position that it is its job to
determine my political credential-;. Now if I happen to be someone
who i.- the .-subject of a criminal investigation, obviously they have an
interest in that; police enforcement — they have an interest in that;
but simply because I run for office, they have no bona fide interest in
that.
Suppose the FBI determines they do not like my positions, and
they record this in the file. I would resent that bitterly. The fact
is they probably do not like m}^ positions.
Senator Fong. If somebody wrote in and said, "Congressman Koch
is a good man," you would not mind ha\'ing that?
Mr. Koch. No; because that is not necessarily an accolade in my
district. [Laughter.]
Senator Fong. Supi^ose he wrote in and said Mr. Koch was a bad
man and did certain things, do you think that should be thrown away
or should that be kept in some kind of a file?
Mr. Koch. Well, Senator, it then becomes a question, if they simply
say I am a bad man, obviousl}^ ^^'hat does that word mean?
Senator Fong. And he goes further and says you did certain things,
do A^ou think he should keep that or should he throw it away?
Mr. Koch. I believe these files should be destroyed. I do not believe
the FBI has any right to maintain dossiers on the citizens of this
country unless they involve matters of criminalit}^ or national security.
I do not believe that when I or any other person runs for office, whether
we are elected or not, that that is a question of national security. I
simply do not believe that the FBI should be the party that deter-
mines whether one is cpialified or not.
Senator Fong. It is verv difficult to draw the balance; is it not?
Mr. Koch. There is a balance.
Senator Fong. Yes.
Mr. Koch. I must say to you. Senator, that there are people who
are not supi^orting my legislation because they say that no file may
be withheld. Thej' say, "You have a provision in there which provides
that in the event of national securit}^ where the President specifically
says it involves national security, the file will be ^\'ithheld." These
people do not believe you should even have that safeguard. I disagree
vdth. them. 1 think there is a balance to be struck.
I think nn' bill provides that balance.
Senator Fong. Thank 3^ou.
Senator Hart. Congressman, I still have not resolved in my inind
precisely what the exchange which you cited between the committee
and Mr. Gray on the destruction of the files establishes and. I am not
yet clear on exacth^ what goes into the files.
If it is just newspaper clippings and campaign literature and infor-
mation derived from reference books available in any public library,
if that is all it is, why would the Bureau be reluctant to show it to you
as the candidate for office?
442
Mr. Koch. Clearly tiiere is more in tliat file, Senator, not neces-
sarily my file but in anyone's file, than simply biographical material.
I think the Acting Director very honestly- made that statement to you
in his exchange with yon Avhen he said that in these files, and the word
that he used is particuJarly appropriate, there is "rot" that he would
not want an archivist to see. So clearly he is embarrassed by some of
the material, which is probably slanderous, libelous, raw' garbage, and
yet that file coruiiuies to remain there.
And I must say this: We know that FBI files have a way of becoming
public, you have had other testimony in other matters where the FBI
files have been used in a wa}^ that you would not want them to be used
and, as I understood it, in a wa}" tliat the FBI Acting Director would
not defend and was rather embarrassed about.
So in this age of the computer Avhere information tends ultimate!}'
to appear on some m.ajor computer bank, all of this material will
ultimately appear on some tape and v.'ill be spewed out and perhaps
used adversely against people who will never know w^hat it contains
and who "will not be able to correct misleading, erroneous information.
That is Avhy I think that my bill which I mentioned earlier, which is
H.R. 667, is one that I would hope would receive consideration by
both the Senate and the House.
Senator Hart. As others have indicated, your testimony is helpful
and specifically directs our attention to the proposal that you have just
again commented on.
I understood the Acting Director tc say that rnles^^ the ^aw i;
changed, the files cannot be disposed of. If thtit is in fact the situation,
then we ought to change the law.
Mr. Koch. It would not be the first law that has been changed.
Senator Hart. In the meantime, I hope we can find out whetlier
those files contain just press clippings or more.
Are there further questions?
Senator Fong. Congressman, 3'ou are in accord vdth Mr. Gray's
idea of not collecting any more such information?
Mr. Koch. Yes; if Mr. Gray took that position, as I think he has.
Senator Fong. That he is not going to collect it any more.
Mr. Koch. That he is not going to collect this kind of information,
I am surely in accord with that. But I also want him to destroy the
information already collected.
Senator Fong. You think he could destroy it without a change in the
law?
Mr. Koch. That I am not able to state. As I understood it from the
testimony, the files could be destroyed if they were first read by the
Archivist.
Well, if that is necessary, if he does not want to have the Archivist
read it, let him read it himself and then destroy it. It seems to me that
one cannot simply rest on a technicality that it must first be read
before it can be destroyed. If he does not want anybody to read it
because it is so filled with rot, then let him take the time to read it
and then destroy it.
Senator Fong. Two mihion files, more than that?
Mr. Koch. It would give him something to do. [Laughter.]
Senator Hart. In the exchange of correspondence that you read, I
got the impression that if the political candidate was defeated
Mr. Koch. Then they destroyed it.
443
Senator Hart. Then they destroyed it.
Mr. Koch. That is exactly right.
Senator Hart How does that jibe with the argument that you
cannot destroy the file until the Archi\nst reads it?
Tslr. Koch. You are right. In his letter of January 2,. 1973, Mr.
Gray says :
If the candidate was defeated in his bid for office, all of the material submitted:
by the field offices would be promptlj^ destroyed and no record of it kept.
That is what lie said. So onh^ if you win are you in trouble.
[Laughter.]
Senator Hart. If the logic here is out of joint, we will just ha^e to
get this thing clarilied with a new Director, gi\dng attention specifi-
cally to tliis question. It is of basic concern.
Congressman, thank you very much. Your prepared statement will
be made a part of the record.
]\Ir. Koch. Thank you, gentlemen.
[Congressman Koch's prepared statement follows:]
Testimony by Representative Edward I. Koch Prepared for '-iENATE
Ji'DiciARY Committee Opposing the Confirmation of L. Patrick Gray
AS Director of the Federal Bureau of Investigation
]Mr. Chairman and distinguished Members of this Committee, I wish to be on:
record opposing the confirmation by the United States Senate of L. Patrick
Gray as Director of the Federal Bureau of Investigation.
Tb.e FBI is this country's most powerful nation-wide investigative force.
Those of us who are sensitive to the inroads made on the civil liberties of our-
citizens in recent years must be especially sensitive to the question of who will
head the FBI during the next four important years.
My reason for opposing the confirmation of Mr. Gray does not relate to any
question I may have as to his experience in the area of law enforcement or the-
fears that he may not be able to withstand political pressures on the FBI from
the Administration, of a politicization although I Imve heard both these points
made. Feather my opposition stems from what I consider Mr Gray's insensitivity
to the value of privacy in America today. Late last year and again early this
year I vv^rote to ^Ir. Gray with respect to dossiers that had been collected by the
FBI on congressional candidates. I asked that if such a dossier wa.s being kept
on me, I he. furnished a copy. After several exchanges of correspondence, Mr.
Gray by letter of January 24 turned down my request to see the material in
my "file. Mr. Gray stated:
"Such recorded information retained by the FBI is subject to the regulation
and control of the Attorney General. It is not available for inspection except for
authorized purposes and then only on a need to know basis. Therefore, I must
decline your request."
The FBI apparently decided that Members of Congress do not "need to
know."
I should note that mj?^ request was turned down even though the FBI assured
me in our correspondence that "no investigation was conducted to secure this
information" and that only publicly available biographical data is contained in
these files. In addition, there is no suggestion in Mr. Gray's letters that the
examination of the contents of the files by any one of us would in any way affect
national security. Yet still the requests to see the files were denied.
I consider the maintaining of such files an inhibiting factor on the workings of
our representative government and a violation of the separation of powers.
The problem of privacy for American citizens today is among our most pressing
domestic issues relating to civil rights. Government intrusion into the workings
of the free press and other examples of the use of governmental power should re-
inforce our traditional instinct for Umiting governmental power.
Because of the ongoing assault on the privacy of individuals, I introduced
legislation in 1969 and again in this Congress, H.R. 667, to require government
agencies to notifv citizens that dossiers and records are being kept about them and
to make such records available to such persons, with certain specific exceptions.
444
>such as national secvxritj- cases, Tlie question of confirmation of Mr. Ch-ay as
director of tlie FBI is, in my mind, closely tied to the need for congressionally
.established controls over the collection, maintenance and dissemination of informa-
tion on individual citizens bj^ government agencies, including the FBI.
I would like to take this opportunity to press the Congress to enact privacy
legislation promptly and to refrain from confirming Mr. Gray until he takes a more
positive attitude toward this issue with respect to his own bureau.
Senator Hart. Our next witness is Joseph I,. Ranh, Jr., appearing
today to present the views of Americans for Democratic Action.
This is not the first nor, I hope, the last time that the committee
will welcome Joe Rauh.
Senator Fong. Mr. Chairman, I want to welcome my Harvard Law
School classmate.
Senator Hart. Do you not want to hear what he has to say first?
[Laughter.]
Senator Fong. I am always interested in what he has to say.
TESTIMONY OF JOSEPH L. RAUH, JR., AMERICANS FOR DEMOCRATIC
ACTION, ACCOMPANIEB BY THEODORE H. BORNSTEIN
Mr. Rauh. Mr. Chairman and members of the committee, I am
here toda}" to present the views of the ADA, of which I am a past
national chairman and presently a national vice chairman, in opposi-
tion to the confirmation of Mr. Gray. We appreciate this oi)portunity
to appear. Accompanying me is Mr. Theodore H. Bornstein, assistant
legislative representative of the ADA.
Mr. Chairman, I know how rushed the committees are in matter=;
of this kind, and you have been, you are always, very patient. I
thought I woidd insert my statement and simimarize it as a method
of expediting the hearing.
Senator Hart. Thank you very much, and without objection the
statement will be printed in full as if given.
[Mr. Raidi's prepared statement follows:]
Statement of Joseph L. Rauh, Jr., Vice Chairman, Americans for Demo-
cratic Action, Before the Senate Judiciary Committee
My name is Joseph L. Rauh, Jr. I appear here today to present the views of
Americans for Democratic Action, of which I am a past National Chairman and
presently a National Vice Chairman, in opi:)Osition to the confirmation of L. Patrick
Gray, III, as Director of the Federal Bureau of Investigation. We appreciate this
opportunity to present our views to the Committee.
Prior to the opening of the hearings, ADA sent a letter to Mr. Gray as follows:
"Americans for Democratic Action urges you to withdraw as nominee for the
post of Director of the Federal Bureau of Investigation and to request the Presi-
dent to appoint to the office someone who is wholly outside the arena of partisan
politics.
"When he created the Bureau of Investigation (now the FBI), Attorney General
Stone stated: 'There is always the possibility that a secret police may become a
menace to free government and free institutions, because it carries with it the
possibility of abuses of power. . . .' And, accepting the position of Director, Mr.
Hoover stated that 'the Bureau must be divorced from politics.'
"What Mr. Stone and Mr. Hoover said in 1924 today is even more true. The
Bureau is the custodian of dossiers on the private lives and opinions of millions
of our citizens. Decisions made every day determine who is to be the subject of
surveillance, whose phones are to be tapped. No one is wholh^ outside the purview
of the Bureau's activities.
"There was resistance in many places to the FBI's aggi-andizement of power and
none was more opposed to this trend than ADA. But we are confronted today with
the fact of this power and the further fact that this power — placed in the hands of
a partisan political figure — would maximize the present manifold dangers to
freedom.
445
"Partisan'^politics is an honorable exercise. Your important positions in Presi-
dent Nixon's campaigns in 1960 and in 1968 do you lionor. But as Mr. Stone and
]\Ir. Hoover made clear, there is no place for partisan politics in the FBI. Tempta-
tions to use that power for the benefit of your jjolitical associates often may be
irresistible. Every act you perform, no matter how motivated, will be deemed by
many to be based on partisan political considerations. The appearance of poUticai
motivation may affect the FBI's stature and integrity almost as much as would
the reality of political motivation.
"By withdrawing now, on the ground that you too believe the FBI should be
divorced from even the appearance of political considerations, you would demon-
strate both a self-denial for the sake of your countrj^ and a sensitivity to the great
issue of civil freedom which would do you proud. You would create a precedent
which could insulate the Bureau from politics for generations to come and so make
a truly great contribution to the ever-lasting struggle to preserve our American
way of life."
The hearings before this Committee have only served to reinforce the position
taken by ADA in its letter to Mr. Gray. What was once the danger of partisan
politics in the FBI became the realitj'- of partisan politics during Mr. Gray's
10-month period as FBI Acting Director. We, therefore, once again call upon
Mr. Gray to withdraw as nominee for the post of FBI Director. By so doing, by
setting a resounding precedent of defending — at real personal sacrifice — the
non-politicizing of the FBI, Mr. Gray would strike a blow for American democracy
and American freedom far l:)eyond anything he can ever do in the office of FBI
Director.
But if Mr. Gray chooses to continue his fight for the oflRce, this Committee has
no alternative except to make the most complete and detailed investigation
possible Cmuch more complete and detailed than has been possible up to this
time) into Mr. Gray's activities as Acting Director over the past 10 months —
even to the extent of awaiting the report of the Special Committee on the Water-
gate. Indeed, if Mr. Grajr persists in refusing to permit a study of the Watergate
affair by the staffs of the meinbers of this Committee, a delay until the results of
the Watergate Committee are in is imperative. Certainly, no one can suggest that
there is any urgency in confirming Mr. Gray, since he is presently serving in the
post at issue and since his predecessor served there for 47 3-ears without confirma-
tion.
Many Americans feel both in debt to, and afraid of, the FBI. Many Americans
are grateful to the Bureau for its work in solving heinous crimes, while at the same
time they are deeply concerned by the Bureau's continually increasing power
over the individual. I certainly am in this category on both counts.
When my client Joseph A. Yablonski was murdered in the closing hours of
1969, it seemed certain that the murder was union-connected and union-directed.
But I was helpless to prove this important fact myself, and both Attorney General
Mitchell and Secretary of Labor Shultz initially opposed FBI investigation of
the crime. But, when public pressure forced General Mitchell to order the FBI
into the case, the Bureau's determination, thoroughness and ability obtained
overwhelming evidence of the involvement of the United Mine Workers officials
and made possible the cleaning up of one of the country's greatest trade unions.
My gratitude to the FBI for this accomplishment has been publicly stated many
times.
But deep concern there is, too. Back in 1950 I wrote a favorable review of a
book critical of the FBI. The review appeared in the Washington Post on a Sunday
morning. When the Senate met on Monday noon. Senator Bourke Hickenlooper,
who I had never met, took the floor to denounce me with a speech prepared from
my dossier at the FBI. My friend Alan Barth, America's most distinguished civil
liberties writer and analyst, wrote an article in Harper's Magazine in 1954 entitled
"How Good Is An FBI Report?" This time the traducer, with FBI materials,
was Senator Barry Goldwater.
Let me hasten to make an important point concerning this use of FBI files by
Mr. Hoover. As far as I know, from 30 years or more of FBI watching, Mr. Hoover
never used the FBI files for partisan 'political purposes. There is a real distinction
between the use of the files to discredit one's critics^unfaii and even dangerous
as I believe that practice to be— and the use of FBI files in the partisan political
arena. For the first time that cloud of political partisanship hangs over the FBI.
Both for the good the FBI has done and can do and for the potential dangers
that lie in surveillance, wiretapping, bugging and dossiers, there is no place for a
partisan political figure at the head of the FBI. The morale of the Bureau in
performing its law enforcement work depends on keeping it totally out of poli-
91-331—73 29
446
tics — both ill reality and in appearance. And the danger to liberty in the FBI's
frightening powers over the individual — surveillance, wiretapping, bugging,
dossiers — the danger to liberty inherent in these powers being exercised in the
political arena by a partisan Director should summon the Senate to its historical
role as the watchdog of freedom.
Mr. Gray comes to his post as Acting Director of the FBI through the political
route. He himself informed the Committee that he "had no professional law en-
forcement experience." When the usual ground for appointment to the nation's
top law enforcement position — i.e., law enforcement experience — is wholly
absent, common sense raises the presumption that political considerations entered
into the making of the apj^ointment. And when the appointee worked on the
personal campaign staff of the man making the appointment, that presumption
is strengthened niightily. Thus, the absence of law enfoicement experience, coupled
with Mr. Gray's long political involvement with the President and the Adminis-
tration, brings the nomination directly into the political arena. This is indeed the
classical case of the nomination of the wrong man for the wrong reason.
This would be true if the nomination had been made 10 months ago. But
everything that has happened in these intervening months reinforces that con-
clusion. Mr. Gray's 10-month role as Acting Director confirms the worst fears
generated by his initial designation.
(i) Mr. Gray made political speeches as a Nixon surrogate. He made such a
political speech in Cleveland after he had been informed by campaign officials
of Ohio's importance in the election. His speeches in Butte and Minneapolis were
even more political. I challenge any fairminded man to i"ead Mr. Gray's Butte
speech and say that it was not an endorsement of the national Administration
and its leader; it tracked in every particular the Administration line concerning
the Democratic candidate. If Mr. Gray is so insensitive that he honestly believes
his own statement that his Butte speech was non-political, this insensitivity is
itself a total disqualification for leadership of the country's national police and
investigative agency.
(ii) Mr. Gray sent the FBI files on the Watergate case to the White House at
the very time the FBI was investigating the case. Since persons previously in
and still close to the White House and persons still in the President's reelection
campaign were involved in the case, this was an obvious breach of proper law
enforcement procedure. Can anyone deny that this was partisan politics?
(iii) When Mr. Gray received information that Donald Segretti claimed to have
been shown the FBI files concerning his activities, Mr. Gray's only action was to
ask the President's Counsel, John Dean, if he had shown Mr. Segretti the files.
He accepted Mr. Dean's denial and took no further action. He made no effort
to track down this compromising of FBI files as he would have done in any other
case. Can anyone deny that this was partisan politics?
(iv) When the FBI sought to interrogate Mrs. John Mitchell, who asserted
that she was going to "tell all" about the Watergate affair, Mr. Gray accepted
Mr. Mitchell's refusal to have his wife interrogated. It is hard to believe that
there is another wife in America, who, had she asserted she was going to "tell
all" about a crime, would have been spared an FBI visit. Can anyone deny this
was partisan politics?
(v) When FBI agents sought to interrogate Robert Mardian, previously a high
Administration official and then a high official in the President's reelection
campaign, Mr. Gray apparently accepted Mr. Mardian's plea of lawyer-client
privilege without question. But even if this privilege existed, which seems highly
doubtful under the circumstances, every lawyer knows that the privilege is no
ground for refusing to answer all questions, but only those involving private
confidential communications between lawyer and client. Much could have been
asked of Mr. Mardian that was not possibly covered by the lawyer-client privilege.
Can anyone deny that this failure to press Mr. Mardian was partisan politics?
(vi) Further investigation by this Committee will undoubtedly bring out
additional political partisanship in Mr. Gray's 10 month Acting Directorship.
Mr. Tonv Wicker, in the New York Times of Sunday, March 4, refers to testimony
tliat the security chief of the Committee to Reelect the President was "plugged
in" to the FBI. The Committee undoubtedly lias other leads beside the one sug-
gested l)y Mr. Wicker and the Watergate files will no doubt supi)ly still others.
This should be the most complete investigation in the history of this Committee,
for it may be the most important nomination on which it will pass.
What is at stake in Mr. Gray's nomination is at the least the integrity of the
FBI and at the most the integrity of our political system. The Senate is the last
remaining bulv/ark against permanent politicizing of the FBI. We are confident
that it will not be found wanting.
447
Mr. Rauh. Mr. Cliairman and members of the Committee, ])rior
to the hearing's we asked Mr. Gray to withdraw, and I would like to
read that letter.
Americans for Democratic Action urges you to withdraw as nominee for the
post of Director of the Federal Bureau of Investigation and to request the Presi-
dent to appoint to the office someone who is wholly outside the arena of partisan
politics.
When he created the Bureau of Investigation (now the FBI) Attorney General
Stone stated: "There is always the possibility that a secret police may become a
menace to free government and free institutions, because it carries with it the
possibility of abuses of power . . ." And, accepting the position of Director, Mr.
Hoover stated that "the Bureau must be divorced from politics."
What Mr. Stone and Mr. Hoover said in 1924 today is even more true. The
Bureau is the custodian of dossiers on the private lives and opinions of millions
of our citizens. Decisions made every day determine who is to be the subject of
surveillance, whose phones are to be tapped. No one is wholly outside the purview
of the Bureau's activities.
There was resistance in many places to the FBI's aggrandizement of power and
none was more opposed to this trend than ADA. But we are confronted today
with the fact of this power and the further fact that this power — placed in the
hands of a partisan political figure — would maximize the present manifold dangers
to freedom.
Partisan politics is an honorable exercise. Your important positions in President
Nixon's campaigns in 1960 and in 1968 do you honor. But as Mr. Stone and Mr.
Hoover made clear, there is no place for partisan politics in the FBI. Temptations
to use that power for the benefit of your political associates often may be irresist-
ible. Every act you perform, no matter how motivated, will be deemed by many
to be based on partisan political considerations. The appearance of political
motivation may affect the FBI's stature and integrity almost as much as would
the reality of ]3olitical motivation.
By withdrawing now, on the ground that you, too, believe the FBI should be-
divorced from even the appearance of political considerations, you would demon-
strate both a self-denial for the sake of your country and a sensitivity to the great
issue of civil freedom which do you proud. You would create a precedent which
could insulate the Bureau from politics for generations to come and so make a
truly great contribution to the ever-lasting struggle to preserve our American way
of life.
The hearings here, Mr. Chairman and members of the committee.,
only serve to reinforce the position that we took in that letter.
What appeared there to be the danger of partisan politics has now
been shown, I regret to sa}^, as the reality and, therefore, ADA this
morning again calls on Mr. Gray to withdraw.
We say to him that by so doing, by setting a resouncUng precedent
of defending, at real personal sacrifice, the nonpoliticizing of the FBI,
Mr. Gray could strike a blow for American democracy and American
freedom far beyond anything he can ever do in the Office of FBI
Director.
We thank the committee for the investigation it has made to date.
We urge it to make it the most thorough investigation in the history
of this committee. We sa}^ that we think you can do this because we
do not know what the rush is. I cannot understand any hurry here.
Mr. Gra}^ is serving in his post now. His predecessor served for 47
years without confirmation. It seems to me that this committee
should work its will in a very deliberate way. It has all the time it
needs. If necessary, it can wait until after the Watergate hearings,
although if it gets its own facts that will not be necessary.
I think most Americans who have studied the problem feel both in
debt to and afraid of the FBI, and I join with this.
I am most grateful to the FBI for its work in solving crimes,-
especially the solution of terrible crimes for which it is famous. At
448
the same time, I am deeply concerned, as are most Americans who
are aware of this problem, by the Bureau's continually increasing
power over the individual.
I would like to give a personal example of both my debt to the FBI
and my fear of the FBI.
When my client, Josei:)h A. Yablonski, was murdered in the closing
hours of 1969, I was certain that the murder was union-connected —
connected with the election in the mine workers. I knew that the
only chance we had of getting to the bottom of that was through the
FBI. Initially Attorney General Mitchell and Labor Secretary Shultz
were opposed to the FBI going into the case. Public pressure demanded
it, they did go in, and the FBI did a magnificent job. And today a
union that A\'as once ridden with corruption and violence is a wholly
different organization. I have over and over again paid tribute to the
FBI for what they did there. They saved a union and, in a real sense,
they gave new hope to people who believe in trade union democracy.
But just as I express mj" gratitude, I have to express my deep
concern about an experience of a different nature.
In 1950 I ^\Tote a book review in the Washington Post of a book
by Max Lowenthal which was critical of the FBI. It appeared in the
Washington Post on a Sunday morning. On Monday- noon Senator
Bourke Hickenlooper, whom I had never met, made an attack on me
on the floor of the Senate, using FBI material.
Now I am hardly a household word in Iowa, and Mr. Hickenlooper's
interest in me could have been of no significance. Wliat happened
was this: FBI materials were used to silence or attempt to silence
a critic.
It is on that point that I think one can see the difference between
the pre\dous actions of the FBI and the fears we have now of partisan
politics creeping into the FBI.
I have been an FBI watcher for 30 years, and I want to say for Mr.
Hoover that I do not believe he did a jiartlsan political act in those 30
years. I am not defending the use of FBI materials to discredit critics,
and as one who was subjected to that treatment, it is not a very
happy treatment. But it is different; there is not the same degree
of danger that the use of FBI files in politics would be.
I never thought I would be saying that I was thinking of the good
old days of J. Edgar Hoover. [Laughter.]
But I want to make my point clear; ]Mr. Hoover would not let
politics get in there. He did some other things that we are all worried
about, but on this item he was a giant, and that is what we must never
forget. And it was because, through my personal experience, I could
explain the difference between using FBI files in a partisan way and
using them against your critics, whether you like that or not, that
I referred to this incident.
Now, both for the good the FBI has done — ^its magnificent police
work — and for the dangers of the dossiers, surveillance, wiretapping
and bugging, there is no place for a partisan political figure at the
head oflhe FBI.
Its whole morale depends upon being nonpolitical, and the dangers
in the use of its great ])ower now arc really beyond description. So
the question is, is that danger there? We believe it is.
Mr. Gray himself, the first day here, said that he "had no profes-
sional law enforcement experience." That is a direct quote. But
449
the most important qualification for the job is law enforcement
experience. If a man does not have the most important qualification,
common sense raises a presumption that this is a political appointment.
And that presumption is streno-thened when the appointee was on
the campaign staft' of the appointor. So we respectfully suggest to
this committee that this is indeed the classical case of the nomination
of the wrong man for the wrong reason.
This was our position 10 months ago. And everything that has
happened in the last 10 months confirms the worst fears that one would
have of taking a political appointee and putting liim into this job that
requires a giant to stand against political pressures.
The examples have all been before the committee and I won't repeat
them except just to saj^ a word about each one.
First, Mr. Gray made ob^nous political speeches. I challenge any
man to read that Butte speech and not consider it a political speech.
The Butte speech tracked the anti-McGovern line of the reelection
committee with perfection.
Second, Mr. Gray sent the FBI files on the Watergate case to the
Wliite House at the very time the FBI was investigating the case.
Third, Mr. Gray did not follow u]) when those files were compro-
mised and shown, as alleged, to Mr. Segretti.
Now, my statement in the record was prepared last Sunday at the
request of committee counsel to have it in ahead of time and I was
perfectly willing to do that. I can understand the need for having
statemeiits ahead of time, but some things have happened since then
that compound the case against Mr. Gray.
The Judiciary Committee now knows these things. First, that
Mr. Gray sent Mr. Dean the files on the Watergate case. Second, that
Mr. Dean was intimately involved in the Committee to Reelect the
President, that he had gotten Mr. Liddy his job there, that he was
involved in the operation of that committee. Third, that three em-
ployees of that committee asked to have their statements to the FBI
kept confidential, that they did not want a lawyer there. And Mr.
Gray gave those statements to Mr. Dean. It was a breach of faith with
those three employees. Those three people trusted the FBI, they
trusted in the right to go to the FBI and give secret information, and
their statements were given to Air. Dean, ^^-ho was working with their
employers. This is the "classical case of putting the fox in charge of the
chicken coop. Mr. Dean was the fox in charge of the chicken coop and
Mr. Gray fed the fox with those FBI reports.
I want to raise a question. It may have occurred to everybody in this
room. It is a delicate thing, yet it keejDs coming back into my mmd.
Wliv was there a Watergate investigation by the Wliite House? Why
was" Mr. Dean told to make an investigation of this matter? The FBI
could make an investigation. Wliy did the President set up a separate
investigation?
And that leads me to the tougher question: Was the Dean investi-
gation set up so that Mr. Dean could see the FBI reports? It is going
to take a great deal of committee investigation to answer that ques-
tion, but you can't down the question. There was no need for an
investigation other than the FBI investigation.
Senator Kennedy. Couldn't Mr. Dean have requested those even
if he was not conducting an investigation? Couldn't he, as the coimsel
for the President, have gotten those files anyway?
450
Mr. Rauh. I don't know, Senator, because I have been here only
off and on. But the testimony was that Mr. Gray had rejected the
idea of sending FBI files to Mr. Ilaldeman. I think he did testify to
that effect. I don't know the answer to your question. But it is my
recollection that there was a problem about this. There is obviously
the possibility that he could have gotten them anyway.
Well, I could go on with more examples, but you have heard them
all here. It seems to me remarkable that Mrs. Mitchell was never
interrogated after she said she could "tell all" about the Watergate
affair. I am sure the FBI wouldn't have been as kind with other
husbands whose ^ives were claiming the}^ were going to tell all about
something, especially when the husband was some^^•hat in\'olved.
I thought the failure to interrogate Robert Mardian was one of
the most remarkable misunderstandings of the law that I have ever
witnessed. Here is a man whom the FBI wants to interrogate and he
says "I have got a lawyer-client privilege." Well, every lawyer knows
that the lawyer-client i)rivilege is limited to confidential communica-
tions between lawyer and client. There was no suggestion that what
JNIr. Mardian knew Avas confidential communications from these
people. Indeed there were suggestions that there were documents
destroyed. It is not a confidential communication from the client.
This whole idea of letting a man not be interviewed because part of
it might be privileged is Avrong.
In adtlition, the privilege isn't ]\Iardian's. It belongs to tlie client,
and he would have had to ask his clients in each instance whether
the}' wanted him to exercise the pri^dlege.
It is verj^ doubtful whether, in fact, Mr. Mardian was the lawyer
for all of those people. Liddy seems to haAe had so many lawyers, it
sounds like the Chase Manhattan Bank. But assuming Mr. Mardian
could get in on that, too, it still wasn't ground for not interrogating
him.
Senator Fong. Are you saying, Mr. Rauh, that every time an FBI
man comes to talk to you, you have to talk to him?
Mr. Rauh. Oh, no. But when you don't talk to the FBI there is
an immediate presumption that you have got something to hold
back. I can think of no case in which I personally would not talk to
the FBI. But I have had clients that I have told not to talk to the
FBI. Generally, I think there is an implication that if you refuse
to talk to the FBI, there is something wrong. Mr. Mardian didn't
want to refuse on the ground there was something A\Tong, so he
refused on the basis of a lawyer-client privilege. Particidar questions
might have been beyond the scope of vrhat could properly be asked,
but the totality of the thing could not possibly have been within
the lawyer-client privilege.
Senator Fong. You admit that he had -a right not to talk to the
FBI?
Mr. Rauh. Everybody has a right not to talk to the FBI. The
only people you have to talk to are the grand jury when they subpena
you and then you don't have to talk to them if you invoke the privi-
lege against self-incrimination. But you don't have to talk to the
FBI if you don't want to.
Senator Fong. Now, you are blaming Mr. Mardian because he
didn't want to talk to the FBI.
451
]\Ir. Rauh. Because he gave a reason that was a phony. If he had
said "I don't want to talk to the FBI," everybody would "have known
he had facts he wanted to hold back. So he had to give a phony
reason to pretend there was nothing wrong m his not talking.
Senator Fong. Maybe that was the rea^son why he didn't want to
talk to the FBI
Mr. Rauh. Lawyer-client?
Senator Fong. He didn't want to talk to them.
\h\ Rauh. A man who has held high legal posts ought to know
what the lawyer-client privilege is. You know that it is limited to
confidential communications between lawyer and client and that
it does not cover the waterfront.
Senator Fong. I thuik he was within his rights not to talk to the
FBI.
Mr. Rauh. I do, too. You are absolutely right, every American
citizen has a right not to talk to the FBI. It is only the grand jury
or a committee here that can compel an answer. You don't have to
answer to the FBI. But presumptions arise in the public mind when
you don't answer to the FBI and, I think, Mr. Mardian gave a phony
legal answer in order to avoid that presumption.
1 would like to conclude with these thoughts: First Mr. Gray, it
seems to me, has committed the cardinal sin of compromising FBI
files and then doing nothing about it. They went to Mr. Dean, who
was involved in the campaign; they covered people who had asked
to be kept secret; there was an allegation that they got out to
Mr. Segretti, and it was never investigated. If that isn't politics, I
don't know what is.
Second, Mr. Gray has said over and over agam that he gave this the
full court press. If I understand it, that is a basketball expression for
giving it the works, doing everything you can. But I suggest that
every time somebody got close to the ball, Mr. Gray seemed to call
time out. There really wasn't the full court press that he claimed.
Third, I would like to suggest that if you follow this road there is
no turning back. I hope Senators Hart and Kennedy won't mind my
saying that Democrats are not saints either. I think if Mr. Gray is
confirmed, the next Democratic FBI Chief is also going to be in
partisan politics. I think that this is a road down which our country
is going that is so dangerous that we must stop it here. I am a Democrat,
and I know it will happen when we get in again, whenever that may
be. Actually, I am not certain that I wholly believe that the Attorney
General should not be a little more removed from politics, but the
Democrats started that with Howard McGrath. That was the first
time I really recollect that occurring, in my working lifetime at least
and it is a troublesome point but it is not the point that we face today.
I think political partisanship is more dangerous in the FBI Director
than in any other job in this country, and if the Republicans do this,
the Democrats are going to do it, too.
I want to say this : That was the one tiling that I think America is
most indebted to Mr. Hoover for. There never was partisan politics
when he headed the FBI. There were tilings we fought and bled and
died against, but there never was partisan politics. I predict, if Mr.
Gray is confirmed, Mr. Hoover will be, at the turn of the century, the
only FBI Director who was totally removed from partisan politics. I
have no more, sir.
452
Senator Hart, You have always been an effective witness but never
more so than this morning.
When you asked for a nonpolitical FBI Director, the only note I
made as you were going along is the point you closed on, that the
Bureau is under the direction of the Department of Justice. The De-
partment of Justice is run by the Attorney General who is selected
by the President. Are we kidding ourselves that without a figure so
radiantly garbed as was Mr. Hoover that we can ever get a non-
political director until we devise a different structure ?
]Mr. Rauh. That is a very important point. Senator, and the different
structure could be of two kinds I suppose : remove control by the
Department of Justice or have a nonpolitical head of the Department,
which neither party has wanted. I guess in retrospect, as I look back,
I cheered for some of the Attorneys General who were appointed,
even though they were political, and I cannot say that I had the fore-
sight to see the danger. But, as I look back, I think there were grave
risks in some of the Attorneys General so appointed. And yet as I look
ahead, I don't see that it is going to be changed soon.
I guess the real answer. Senator Hart, is this : You are correct, of
course, INIr. Hoover was less under the influence of Attorneys General
than probably any other official in the Depai'tment, and it was a good
thing. As fai- as some of the other civil liberties aspects were con-
cerned, I would say it was a bad thing, but ]Mr. Hoover was less po-
litical than any future FBI Director is going to be.
Xevertheless, the Bureau is such a massive thing, is so big, has such
vast functions, that I don't believe tliero will be substantial influoncc
from even a political Attorney General if there is a clear understand-
ing of the nonpoliticized nature of the FBI. That is why I think 'Sir.
Gray could do such a noble act if he were to withdraw on that ground.
it you once had it accepted that the FBI is nonpolitical, I believe
the Attorney General, no matter how political, would have to be care-
ful. I believe, first, most Attorneys General would want to keep out of
it if you had that principle settled, and second, those that didn't would
have great trouble moving in once it were known there was a precedent
for nonpoliticizing the FBI — if the Senate of the United States rejects
Mr. Gray, or if Mr. Gray withdraws.
Senator Hart. Senator Kennedy.
Senator Kennedy. I have no questions.
I welcome you. Mr. Rauh. I think you have summarized a strong
case very eloquently, as always, and I appreciate your appearance
here.
Mr. Rat7tt. Thank you, Senator.
Senator Hart. Senator Fong.
Senator Fong. INlr. Rauh. I again want to welcome you before the
committee. I am always glad to have vou before us and it is always
nice to be talking to a classmate of mine. Sometimes we don't agree
on some of the things that we speak on, but nevertheless we are friends.
Mr. Rauh, you said that the Butte, Mont., speech is one of the most
partisan speeches given.
Mr. Rauh. What word did you use, sir? I did not hear you.
Senator Fong. That it was a very partisan speech.
Mr. Rauh. Partisan ; yes, sir.
453
Senator Fong. I have read the Butte, ]Mont., speech. I don't find it
partisan whatsoever. Now, the Butte, Mont., speech is entitled "A
Nation That Cares." It was a speech before the Eotarians. Gray says :
In our 20th century world these are among the salient questions facing
mankind :
What kind of society do we want?
What kind of country is America going to become?
Does our Government care about our people?
Does it listen?
Is it a sensitive society, wanting to make life more significant and meaningful
for every man, woman, and child?
These are questions which strike to the very heart of our American way of life.
^ "i* Sj" ifZ JjC 9|t ^C
I believe that Americans know what it means to care.
We care enough to do our very best.
We care deeply about our community, our fellow man, our Nation.
We realize that unless people care — about themselves, about others, about their
values and traditions — our country will die.
There is nothing political in that, is there ?
Mr. Ratjh. Senator, I was, I would have to be honest with you, I was
going through the parts of the speech I was going to read to you to get
ready to answer you and I didn't hear what you read. I apologize,
Senator Fong, for having looked at the speech instead of listening to
you. If you want to reread it, I am perfectly happj- to give an answer.
I just was doing something else.
Senator Fong. You are not prepared to answer ?
Mr. Rauh. I can't, I am ready to read my part of the speech and
I didn't listen. I am just as apologetic as I could be.
Senator Fong. Let us start with part of the introduction.
Mr. Rauh. All right. Can we go back over it, sir, and I will answer.
Senator Fong. The title of the speech is "A Nation That Cares."
Mr. Gray starts off and says :
As a fellow Rotariau, I welcome this opportunity to be your guest this evening.
We in the FBI deeply appreciate the splendid cooperation which you, as Eotar-
ians and citizens of this great city and state, have given us over the years.
This evening I want to talk about A NATION THAT CARES, a Nation which
is concerned about its citizens, their welfare, their happiness, their dignity as
human beings.
In our 20th century world these are among the salient questions facing
mankind :
What kind of society do we want?
What kind of country is America going to become?
Does our Government care about our people? Does it listen?
Is it a sensitive society, wanting to make life more significant and meaning-
ful for every man, woman, and child?
These are questions which strike to the very heart of our American way of life.
They are questions about which we must take a stand if we are to face the
future with confidence and courage.
I believe that Americans know what it means to care.
We care enough to do our very best.
We care deeply about our community, our fellow man, our Nation.
We realize that unless people care — about themselves, about others, about
their values and traditions — our country will die.
There is nothing political in that, is there?
!Mr. Rauh. No, sir, except that that rhetoric was set up to make a
contrast with the end of his page 2 where the attack on the Democrats
454
really starts to hit. I agi-ee with you that, if that were all that was
said, it was nonpolitical. But I can just watch the speechwriters'
minds going. That was the nice part — how we love our country — to
set it up, to hit the people who, because they are critical, do not love
our country, the suggestion that the Democrats are somehow not
equally so devoted to our country as this administration. So, while I
will agree that those words in a vacuum were nonpolitical, in this
speech they were carefully devised as part of a real political speech.
Senator Fong. Well, I will go further.
Unfortunately, there are today a small minority of Americans —
Senator Fong. He didn't say Democrats. There are a number of
Republicans who fall in that category,
_ not many but a few — who bitterly and falsely denounce our country as cruel,
sick, callous, and repressive.
They want to create the impression that our Government is an ogre, a monster
which simply doesn't care.
Auother prominent educator has publicly denounced our national lenders as
not giving — in his words — "any clear sign of compassion or concern for the poor,
the wf-ak, the sick, the unemployed, the heliUess ....'"
Another speaks of a -selfish and oblivious ruling Establishment."
An author asks, "Is America falling apart?" and then categorically states,
"The American Constitution is out of date."
Do you construe that as very partisan
Mr. Ratth. Absolutely. I think the effort there is to inculcate into
the minds of the listeners that the McGovernites denounce our coun-
try. There are even words that liave been used bv McGovern that are
in there. I think if you compare this speech with some of the Presi-
dent's own statements, some of the adjectives used by the President,
you will find they are very close and were clearly intended to convey
the impression that the McGovern supporters believe these things, and
some of them were actually said by the Sejiator. I think lie used the
word "]-epressive" during the campaign. I think tlie lack of "compas-
sion," "selfish and oblivious ruling Establishment," manv of these
things were actually said by the Democrats. I think it was clearly
political to set up nice values at the beginning of the speech and tlieii
these "terrible" things that were being said on the other side.
Senator Fong. Republicans said that also ?
Mr. Ratjh. But it gets worse as it goes on, Senator. I could have
passed these couple of pages except I didn't feel like it. But as you go
on you are going to find the speech gets worse and worse.
Senator Fong. Now, the word "repressive" is always used against
the Government, regardless of which party controls the Government.
It is used by Democrats, Republicans, nonpartisans, and Independents.
That word is used all the time.
Mr. Rauh. But Mr. Gray is quoting that word to say that it is
wrong to use it. Mr. Gray is suggesting here that it is wrong to use
the word "repressive," that there is something un-American about
using the word "repressive."
Senator Fong. No. He says there is, and I quot€ : "a small minority
of Americans." The Democrats are not a minority, they are a majority.
He said "today a small minority of Americans, not many, but a few,"
and I don't see any political implications in that.
455
Mr. Eauh. Senator, when you denounce your opponents, you never
suggest tliey are a majority. You talk about them as a minority. I know
what a good politician j'ou are and I am sure you never suggested that
people who have different views from you are a majority. That is an
old political debating trick that everybody since kingdom come has
used in politics. You set up your opponents as a minority and you tell
about all those terrible things that the minority stands for, like calling
this a repressive society. I think you are kind of putting me on because
you really know this is a political speech, Senator.
Senator Fong. Well, in my State I am a member of the minority
party. We are outnumbered by the Democrats almost 4 to 1.
]Mr. Ratjh. I bet you don't admit that.
Senator Fong. I admit it.
Mr. Ratjh. I bet when you run for office you don't say your oppo-
nent is going to beat you 4 to 1.
Senator Fong. Well, that is different. [Laughter.]
I don't agree with you, Mr. Rauh, that this speech is political. I think
it is a speech that could be given by any professor, any American. I
think this is a pro-American speech, not a pro-Republican speech or
an anti-Democratic speech. But, of course, you have your opinion and
I have mine.
jMr. Ratjh. Would you permit me, sir, to read one sentence at the top
of page 8 ?
Senator Foxg. Yes.
]Mr. Rauh [reading] :
At the Federal level, the resources and the successes in this field continue to
rise, and today there is more legal action against alleged civil rights violators
than ever before.
Listen to that : "Today." that is in the heat of the campaign, Sep-
tember 19T2, Gray is saying, "Today there is more legal action against
alleged civil rights violators than ever before." I am not referring to
the fact that the statement is an untruth ; I am referring to the fact
that it is obviously a political statement.
Senator Foxg. If you take that as a political statement you j)robably
will take this on page 4 as a political statement :
Since World War II the taxpayers of this country have provided approximately
$130 billion in loans and outright grants to other nations. This has gone not just
to our strongest and closest allies, but most especially to weaker nations most in
need of it. We have given this aid literally until it hurt — hurt our balance of
payments and our trade position with other countries.
But the critics who claim this is a selfish Nation do not talk much about that.
What other country has foiuid a means to send people of ability and dedication
to help emerging nations around the world in their efforts to elevate their way
of life, without asking anything whatsoever in return?
The critics who say we are crass and ungenerous people do not talk much
about that.
What other people supports anywhere near the variety of charitable causes
and contributes anywhere near the proportion of its resources for such causes?
I refer to approximately 820 billion per year in private contributions to health,
welfare, educational, and religious institutions. And this does not include the
millions of man-hours and woman-hours contributed in the form of personal
skills and service to these causes by devoted individuals.
But the doomsayers who call ours a decadent society do not talk much about
that.
456
Here lie is referring to what America has clone in all these years
from the INIarshall Plan on. Democrats have been in power and Ee-
publicans have been in power. The Kennedy administration, the John-
son administration, have followed that course. I think it is a pro-
American speech. I don't agree with you that this is a pro-Republican
speech.
Mr. Ratjh. Sir, if you go six lines further down from where you
are reading, listen to this :
To those who claim that our national priorities are distorted away from the
individual, I would point out that the Federal outlays for supporting and de-
veloping human resources such as those I have described continue to increase
year after year, and that in the current fiscal year 45 percent of the Federal
Budget is for human resources and only 32 percent for national defense.
The whole thing you read was a back-ground to point out how much
more the administration was doing this year than anybody had done
before.
Senator Fong. In other words, this is a Nation that cares. This is
what he is saying, this is a Nation that cares.
Mv. Rauh. If you want to say that the present administration cares
the most, I respectfully suggest that is a delxitablc point, but anyway
it is political.
Senator Foxg. Well, Congress is controlled by the Democratic Party
in the House and Senate. They pass tlie laws and they take the credit
also. When he says that our country cares, it indicates our country has
appropriated and contributed all this money. It is the Congress that
appropriates. The President that signs the bilk
^Ir. Rauii. yiy dear classmate, you are a good laAvyer with a lousy
case on this Butte speech. [Laughter.]
Senator Foxg. Well, we differ on tins speech but let us go on from
there.
You say that ISIr. Gray had no experience, law enforcement
experience.
Mr. RAtTH, Mr. Gray said that.
Senator Foxg. Yes; he said that. Now he has 10 months of experi-
ence. Do you feel that is enough now ?
]Mr. Rauh. I might have a different view, sir, if Mr. Gray's 10
months of experience had been in law enforcement and he haci kept
out of politics. But I respectful Iv suggest that when he went around
making speeches which I consider political — we disagree on that I
recognize — wlien he got himself involved in doing things like com-
promising the FBI files, I would feel that his experience works against
him. I don't consider the FBI directorship a kindergarten or that you
ought to have an in-the-class ti'aining program. It seems to me that a
man ought to have some experience before he comes in or else works
his way up through the FBI. Strangely enough, INIr. Gray in the 'Navy
might have been in the ONI or something else with law enforcement
exj^erience, but he wasn't. Mr. Gray never had any experience there.
I thought his statement to this committee was kind of cute. He tried
to make a virtue out of it. He said in effect, "I don't have any expe-
rience so I don't have any predispositions to know anything wrong."
Well, with that kind of "experience," I think nobody would ever hold
a job to which he had worked his way up, and the voung lawyer just
out of law school would be the first man in front of the Supreme Court.
But life does not work that way.
457
Senator Foxo. You know, Mr. Raiih, lawj-ers fit into almost an}- kind
of profession if tlie}^ are pretty good lawyers. Here is a man who lias
liad experience in the Xavy as a lawyer, who has been in the Justice
Department as a lawyer. He has knowledge of the law. Is that a good
qualification for his job ?
Mr. Eatjh. Yf ell, it is not a bad philosophy. Senator, to suggest that
you start at the top and learn from there.' But it is not one that I
thought our country generally accepted. I thought people got expe-
rience and then got the post after they had the experience rather than
getting it this way.
Senator Foxo, We are talking about today. We are talking about a
confirmation today. We are talking 10 months after he was appointed.
Here is a man who has had 10 months of experience. Would you say
that is not sufficient experience ?
Mr. Rauh. Xo ; I would say something much stronger. Wliat he has
evidenced there is a partisan political aptitude rather than a law
enforcement aptitude. I am not suggesting that someone might not, in
10 months, have garnered law enforcement experience. I am saying'
that Mr. Gray's talents were used otherwise.
Senator Foxg. Well. Edgai- Hoover was a clerk in the Government
Printing Office. Then he became Assistant Attorney General for 4 or 5
years under Stone. Then he became FBI Director at the age of 29. He
didn't have much experience when he went into the FBI.
Mr, Rauh. He had the whole experience of the FBI : he worked his:
way up from the bottom of what was then called the Bureau of Investi-
gation, If I road the history l30oks right, Hoover Avas in tlie Palmer
"red raids." He was appointed in 1924, Senator Fong. He had already
run the 1920 Palmer red raids. Xow, you can say that that wasn't a
very nice thing to have done, but as far as law enforcement experience
is concerned, he was already in charge of the whole field force in 1920
and was in charge for 4 years,
I never thought I was going to be the defender of J, Edgar Hoover,
but by God, he had experience when he went into the top job.
Senator Foxg, '\"Mien he became Director of the FBI at the age
of 29?
Mr. Rauh. He had had 6 years of FBI experience. I think that is
pretty good and he had risen from the bottom to the top, exactly what
I have suggested might be done here. I don't say you have to take
the FBI Director from the staff of the FBI but you ought to take
him from the law enforcement field. There are plenty of chiefs of
poHce around this country and there are other people in other areas
of investigation and police work that could do this job without going
to a politician. I say "politician" not in a derogatory sense, I con-
sider mvself one. I consider you, my friend, one. It seems to me that
it is an honorable calling, but oil and water don't mix and politics and
the FBI don't mix.
Senator Foxg, Let us get to the Mardian case. INIardian refuses to
talk. Do you hold that against the FBI ?
]\Ir. Rauh. I hold it against Mr. Gray that he didn't think to point
out to Mr. Mardian that you can talk to the FBI without the lawyer-
client privilege barring you if you want to. Gray should have said:
"There may be some questions you have, and, if you don't want ta
talk to us, just tell us, but you don't have a lawyer-client privilege."
45S
Senator Foxg. Isn't it a question for a court to decide whether there
is a lawyer-client privilege?
INIr. Rauh. I think
Senator Fong. Eventually, if that privilege is claimed?
Mr. Rauh. Oh, yes ; but, sir, I don't think you or any lawyer would
think there is total privilege. I admit if one of these people were his
client, they couldn't ask about a confidential communication when
the two of them were alone. That is what the privilege is.
But he said, "I can't talk to you at all," and everybody knows that
that was no ground for not talking.
Senator Fong. But Mr. Mardian claimed it.
]Mr. Rauh. That's right, sir.
Senator Foxg. And, when he claimed it, j\Ir. Gray couldn't force
him to talk.
Mr. Rauh. I think he could have forced him because Mr. INIardian,
who wants to be respected in this country, is not going to refuse to
talk to the FBI. People who want to be respected do not refuse to
talk to the FBI. They think of some excuse for not talking other than
just refusing. I don't know of anybody who just goes around refusing
to talk to the FBI.
Senator Foxg. But the fact is that he refused to talk to the FBI.
Mr. Rauh. But he gave a phony excuse.
Senator Foxg. You don't hold that against Mr. Gray?
ISIr. Rauh. I do because Mr. Gray should have exposed that phony
excuse, and I think INIr. INIardian would have had to talk.
Senator Foxg. Well, let us come to Dean. Do you think Dean should
not have gotten the files ?
Mr. Rauh. Sir?
Senator Foxg. Do you think that Mr. Dean, Counsel to the Pres-
ident, should not have gotten the FBI files ?
]Mr. Rauh. I certainly think he should not have gotten the files. Mr.
Dean had input into the Committee for the Reelection of the Presi-
dent. ^Ir. Dean was heavily involved in that committee. There is a
statement in the Post yesterday fi-om a man named Lumbard of how
Dean was working with the committee. Of course, they shouldn't have
given Mr. Dean the files. There is no possible excuse for having given
the files to a man who is involved in some way with the co-conspirators.
He turns up having made Liddy his guy in the committee. Now,
Liddy has been convicted down there in the Watergate case. And here
is Mr. Dean connected with him, he got him his job. To give Dean
the files — what more can you do to compromise the files than to give
them to someone who is in close contact with the person that they are
about, and particularly to do so when three decent people in that com-
mittee wanted privacy and secrecy. To give Dean, who is connected
with that committee, their files — why that was an outrage.
Senator Foxg. I am correct, I think, that the testimony before this
committee is that the files were given to the Attorney General, who
is the boss of Mr. Gray. The Attorney General turned them over to
Mr. Dean, who is Counsel to the President. Now do you think that
Gray had a right to turn the files over to the Attorney General ?
Mr. Rauh. It is my understanding that if they were turned over
to the Attorney General, it was for transmission to INIr. Dean. I haven't
459
been here all the time. But having studied the press, and I have to
base it on that, it is my understanding that the files went from jMr.
Gray to Mr. Dean, and that he had intended they go to Mr. Dean.
"\Miether they went through the Attorney General is not important.
Mr. Gray had intended to give them to INIr. Dean and Mr. Gray has
defended his giving them to Mr. Dean.
Senator Fong. Now, do you think the President, who is the overall
boss, has the right to look at any of the FBI files ?
Mr. Rauh. Yes; if the President had asked the FBI to make this
investigation. But I said that I thought a serious question arose about
whether there was any reason for a Dean investigation other than for
the purpose of getting him access to the files. It is very hard to say
about the President seeing the files. If the President had said to the
FBI, "Make me an investigation of the "V^^iite House stafi' on this
thing and I want a report," that would be one thing.
That isn't what happened here. I would have said that the President
had a right to do that. I would say the President would have had a
right to say to the FBI, "I want the White House staff gone over and
laundered completely on the Watergate case. Give me a report on that."
That is one thing.
But to give the files to Mr. Dean who is up to his navel with the Com-
mittee to Reelect the President, to give them to Mr, Dean when that
committee has got people working there who commit illegal acts, that
was a compromising of the files.
Senator Fong. The President had an interest in this, didn't he ? His
people were being criticized.
]SIr. Rauh. Oh, he had a real interest in that.
Senator Fong. Yes. So, he had a right to the files. That you don't
deny ?
Mr. Rauh. I tried to answer that. I don't know what you mean by
"a right to the files."
Senator Foxg. To look at the files.
jSIr. Rauh. I don't think the President had a right to see the file of
an employee of the committee who asked to go to the FBI and be inter-
rogated secretly. I think the President did have a right to a report
from the FBI of what they found out about the ^Vliite House staff.
But that is not what happened.
You see, you are trying to say, well, the President could have it and
therefore his delegate could have it. That does not follow at all. You
might as well say because the President could have had it, Liddy could
have had it. What you are saying is that since the President could
have it therefore Liddy's sponsor in the 'Wliite House could have it.
There are differences even in the ^^^lite House.
Senator Fong. Yes ; but Dean is Counsel to the President.
Mr. Rauh. Wliat?
Mr. Fong. The President does not look at everything. He has to dele-
gate his duties and he has to delegate certain functions. Here, he dele-
gated it to Mr. Dean.
:Mr. Rauh. And I raise this question : Didn't he delegate it to Mr.
Dean for the purpose of granting Dean access to the files ? The one
person in the TMiite House who should not have had them was ]Mr.
Dean, after he had such a close connection with the Committee to
460
Reelect the President, tlie committee which was involved in the Water-
gate bugging.
Senator Fong. The fact is that Mr. Dean got them, why do you
criticize Mr, Gray for this when ]\Ir. Gray gave them to the Attorney
General and the Attorney General sent them down to the White House ?
Do you say that Mr. Gray should have prevented that ? Should Gray
have stopped Mr. Dean from looking at it ? Should Gray have said to
Mr. Dean, "You can't look at it," or said "Mr, President, you just
can't give it to Mr. Dean." Is this what you say ?
^Ir. Rauh. It is my understanding that the testimony before this
committee shows that Mr. Gray intended the material to go to Mr.
Dean. He should not have done that. He knew Mr. Dean was tied up
with the Committee to Re-elect the President and he should not in
any way have given ]Mr. Dean access to those files. And I say that the
most shocking thing of all was giving Dean the statements of the
employees whose consciences were too much for them. They had been
put through FBI interrogations with a lawyer there, so they couldn't
tell the whole story. They then went to the FBI with the whole story
and then, to their amazement, they find out everything had gotten
back to the committee because the files went to the guy who was in-
volved with the committee from the White House.
Senator Fong. I understand from the testimony of Mr, Gray that
the President asked that Mr. Dean look at those files. I am not sure
whether that is riglit, but my recollection is that the President asked
that Mr. Dean look at the files. Now with that kind of an order, would
you say that ]\Ir, Gray could tell the President, "No, you shouldn't
give My. Dean that right to look at them,"
INIr, Rauh, I think you are proving my case, I think that what you
are really proving is how much you need a nonpartisan FBI Director.
You need an FBI Director whose feet are in concrete, who cannot be
swayed by the partisan considerations of anybody.
I don't know what Dean's relationships with the President are.
That is not within my ken. But I know Dean's relationships with the
Committee to Re-elect the President and he was a man who should
not have had this material, especially from employees of the Com-
mittee to Re-elect the President.
Senator Foxg. We are talking about an agency which is under the
Justice Department. The FBI collects facts and data for the Justice
Department, It is the Justice Department that prosecutes, if they
decide tliere is a case. The FBI is an investigative arm of the Govern-
ment. The results of their investigation goes to the Justice Depart-
ment. Now, do you say that this man here. Gray, should not send
anything to anybody ? This is what you are saying, aren't you ?
]Mr. Rauh. Just about. Senator. There are exceptions to every rule,
and we have got, for example, the one good exception — the Committee
to Investigate the Watergate, which has the right to see some of this
material. But I would say there is one man who should not have had
it, and that is Dean.
But let me tell you something else. I don't believe your theory and
Gray's theory coincide.
Gray is not saying he was told to give the files to Dean by the
Attorney General. Gray is saying he did it. In other words, I "think
you and Mr. Gray had better have a kind of a getting together.
461
Senator Fong. No. The testimony shows
]Mr. Rauh. So you get to the same i)oint.
Senator Fong. The testimony shows he turned it over to the Justice
Department and the Justice Department turned it over to Dean. There
is no other evidence and there is no testimony to contradict that.
Mr. Rauh. But is it not Mr. Gray's testimony tliat he sent it over
there to send to Mr. Dean? I think that if you are suggesting that
Grav didn't want it to o-q to Dean, and that the Attornev General
ordered hnn to give it to Dean, you would be disagreeing with Gray.
Senator Foxg. I didn't sav that.
Mr. Rauh. We don't have the case of the Attorney General making
the decision for it to go to Mr. Dean. We have the case of Mr. Gray
making the decision for it to go to Mr. Dean. That is a far dili'erent
thing.
Senator Fong. Mr. Gray didn't make the decision. It was the Presi-
dent who decided who on his staff was to make an investigation. So it
went to the Justice Department and the Attorney General sent it down
to the White House.
Mr. Rauh. I don't know of any decision to the effect that the Presi-
dent directed Mr. Gra}- to give the files to Dean. If he did. I haven't
heard that testimony.
Senator Fong. That is the testimony — the President wanted him to
send it to Mr. Dean.
]Mr. Rauh. As I saj^, I haven't been here but I read the press stories.
The President set up Mr. Dean as a man to look o^er the White House
activities and in that capacity Mr. Dean kept getting this material.
There is not any suggestion that I ever heard in this hearing that the
President told Mr. Gray, directly or indirectly, to turn this material
over to ^Ir. Dean. I think that is really a suggestion you are making
on a hypothetical basis.
I tliink that Mr. Gray's defense of himself is less protective, sir, if
I may respectfully suggest this, than your defense of Mr. Gray. I think
he admits he sent it to ]Mr. Dean.
Senator Fong. No ; he admitted he sent it to the Attorney General.
Mr. Rauh. To send to ]Mr. Dean. I think the Attorney General was a
letter drop.
Senator Fong. And, the Attorney General sent it over to him.
Thank you, ]Mr. Rauh.
Mr. Rauh. Well, you are alw^ays very nice, sir, and I hope when we
get outside we can talk some more.
Senator Fong. Surely.
Senator Hakt. Thank you very much, Mr. Rauh.
It is my understanding that Professor Dorsen is obliged to meet an
appointment back in New York later today and for that reason it is
asked if he possiblv could be heard before the lunch break.
It is my understanding that he will be unable to summarize his pre-
pared statement.
Senator Fong. And his prepared statement will be received m full
in the hearing ?
Senator Hart. Yes.
Professor Dorsen speaks to us this morning, as the chairman for the-
Committee for Public Justice. He is indeed welcome.
91-331—73 30
462
TESTIMONY OP NORMAN DORSEN, CHAIRMAN, COMMITTEE FOR
PUBLIC JUSTICE, ACCOMPANIED BY LEON FRIEDMAN, EXECU-
TIVE DIRECTOR, COMMITTEE FOR PUBLIC JUSTICE, AND
STEPHEN GILLERS
Mr. DoRSEX. Thank you very much, Mr. Chcairman, and Senator
Fong, for allowing me to go on. I shall try to be very brief.
We do have a rather lengthy prepared statement which we will
request be made a part of the record. The statement refers to specific
instances and problems that we hope will draw your attention.
[The prepared statement referred to follows:]
Statement by Norman Dorsen, Chairman, Committee for Public Justice and
Leon Friedman, Director, Committee for Public Justice
I welcome this opportunity to appear before the Senate Judiciary Committee to
discuss the confirmation of L. Patrick Gray as Director of the FBI.
My name is Norman Dorsen. I am professor at New York University Law
School and Chairman of the Committee for Public Justice.
On behalf of the Committee for Public Justice, I urge this Committee to take
the opportunity of these hearings to examine the powers, role and structure of
the Federal Bureau of Investigation as an institution. I noted that in api^endix A
of Mr. Gray's prepared statement for these hearings he lists the inquiries he set
in motion on assuming the acting Directorship of the FBI. He does not tell us,
however, the results of these inquiries today, nine months later, or his position
on the important institutional questions they raise. The immediacy of these
matters cannot be overemphasized and I hope to cover them briefly in my follow-
ing remarks.
The Committee for Public Ju.stice is an independent organization affiliated
with the American Civil Liberties Union Foundation. It studies and is con-
cerned with individual rights and civil liberties of American citizens. As part of
its efforts at public education concerning these problems it held a conference
on the FBI at Princeton University. This conference was attended by 50 experts
on the FBI, including former FBI agents, ex-justice department officials, and
many other writers and academic figures, of all points of view, who have made
the FBI a special area of their interest. The conference examined a wide range
of issues, such as the Bureau's history and responsibilities, its relations with
other police forces, its performance in the areas of civil rights and organized
crime, the collection and dissemination of personal and political information,
and the use of electronic surveillance and informers. Papers from that confer-
ence, together with panel and other discussions, have recently been published in
a lionk entitled Investigating The FBI, which was sent to each member of this
Committee.
appropriate areas of inquiry
Since its inception 65 years ago this June the FBI has never been the subject
of a completed congressional investigation. In 1921, a subcommittee of the Senate
Judiciary Committee questioned Attorney General Palmer and J. Edgar Hoover,
then head of the Bui-eau's General Intelligence Division, about raids against
American citizens and aliens the previous year. These raids had been the subject
of a critical report signed by twelve prominent lawyers, including Felix Frank-
furter. Roscoe Pound, and Zechariah Chafee. At the conclusion of the hearings.
Senator Walsh wrote a report criticizing the Justice Department and the
Bureau. Senator Sterling wrote a report exonerating both. Neither report was
adopted by the full Committee. No attempt has since been made by any com-
mittee of Congress to thoroughly examine the Bureau or its role in the American
legal system.
We believe that no one should be confirmed as Director of the FBI unless
he gives satisfactory assurances to the Senate that he will take steps to end
well-documented practices of the FBI that threaten First Amendment and other
Constitutional rights of American citizens. These practices include the following:
(1) FBI infiltration and surveillance of unpopular or minority groups and
individuals engaged in political, not criminal, activity ;
463
(2) Interfering with, monitoring, spreading false rumors about, or photo-
graphing public demonstrations ;
(3) Engaging in wiretapping or electronic bugging without a warrant for any
purpose ;
(4) Invasion of privacy by collection and dissemination of information;
(5) Inadequately investigating local police misconduct;
(6) Placing unnecessary restrictions on the rights of agents and other em-
ployees of the Bureau.
We are also concerned about public control of Bureau policies and practices.
We will now discuss each of these issues.
I Infiltration of Groups and Surveillance of Members
In 1924 Harlan Fiske Stone, then Attorney General and later Chief Justice
of the United States, addressed himself to the problem of FBI infiltration of
political groups. He said :
"The Bureau of Investigation is not concerned with political or other
opinions of individuals. It is concerned only with . . . such conduct as is
forbidden by the laws of the United States. When a police system passes
beyond this limit, it is dangerous to the proper administration of justice
and to human liberty which it should be our first concern to cherish."
Mr. Gray himself said last week that the FBI has no jurisdiction to investigate
any individual where there is no violation of federal law.
But su!).stantial evidence exists that for many years the FBI has infiltrated
private groups and public gatherings. The appearance or fact of widespread FBI
infiltratiun of unpopular or minority groups for political purposes may frustrate
the First Amendment rights of their members to association, petition and speech.
The following are examples of '"political" infiltration.
BLACK GROUPS
a. The Media, Penna., documents and Investigating The FBI contain a Hoover
directive to infiltrate and watch "all black student unions" "organized to project
the demands of black students" and to develop racial informants in the ghetto.
The justification given was the need to be aware of "the potential for violence in
■each ghetto area." *
b. The Media documents and Investigating The FBI contain a directive to all
agents to "ascertain among which informants are planning to enter college thi.s
fall and will be in a position to infiltrate black power groups on. campuses."
[QMBD]
c. According to former FBI agent Robert Wall (in Investigating The FBI)
the alleged basis for the standard practice of infiltrating black groups is the
"violent tendencies of militant, black extremists." The Media documents are in
accord.
d. According to the Media documents and the book, the FBI infiltrated the
National Black Economic Development Conference in Philadelphia and also
monitored its bank account.
POLITICAL AND ANTIWAR GROUPS
e. According to Investigating The FBI and the Media documents, the planning
of a 1960 conference on War Resisters was investigated "through established
sources only" in order to determine the scope of the conference and whether it
would "generate any anti-U.S. propaganda." [QMBD]
f. According to Mr. Wall, there was a heavy placement of informants in "all
organizations likely to participate in any mass march or demonstration".
g. According to Mr. Wall, "there are hardly any limits on the Bureau's activi-
ties in compiling i)olitical information particularly about the new Left". Ex-
amples, from different sources, include the Institute for Policy Studies, com-
munes, the April 1970 Earth Day demonstration, and a meeting of the Washing-
ton Peace Mobilization in the winter of 1969, where, according to Frank Donner,
9 of 32 participants were agents.
h. Mr. Donner related experiences of student informers who surfaced "despite
cloudy threats of reprisal" and admitted lying about activities of others on
campus.
*Whprp qnoted material ap?''enrs In both Investigatinff The FBI and Media documents.
It is hereafter indicated by QMBD. Otherwise all unattributed references are to the FBI
boolj based on the Committee's conference.
464
INVESTIGATION OF INDIVIDLTALS
i. According to Mr. Wall, special agents were directed "to investigate all the
leaders in all the local peace groups and to determine, among other things, the
soui-ce of any money used to finance the movement. From there it was a simple
step in the investigation of anyone connected to the peace movement in any way."
EXTENT OF INFILTRATION
j. Mr. Hoover h;-l reported that in 1964, the last year for which he apparently
gave a statistic, there were 150 non-communist groups infiltrated to determine
the extent of communist influence.
k. An analysis of the Media documents shows that of those documents dealing
with substantive intelligence, 40 per cent contained information from political
surveillance.
1. During his three years investigating radical groups, Mr. Wall never found
evidence which could lead to a conviction for criminal violence. Violence was
the rationale given Mr. W\all for informant surveillance and infiltration of these
groups.
m. According to Mr. Wall, the mere use of the caption "Radical Matter" is
sufficient to justify opening a file on any black group or individual.
Mr. Gray has testified that on taking office he ordered a detailed analysis
and justification for FBI policies with regard to the investigation of individuals
where there was no specific violation of federal law. But he did not tell this
Committee current FBI policies in this area, the result of his inquiry or his
own position on this matter.
Accordingly, Mr. Gray must be questioned further by this Committee to see
whether such practices are continuing. He should inform this Committee of
the standards used to infiltrate and conduct surveillance of groups or individuals
engaging in political, not criminal activities.
The Committee for Public Justice believes that the FBI must confine itself
to the enforcement of federal criminal law. Controversial practices such as
infiltration and surveillance of groups and individuals must be controlled by
Fourth Amendment probable cause standards. Insofar as the Bureau has investi-
gative or intelligence responsibilities outside this narrow area, these should
be strictly defined by Congress after full debate. The Committee should not
recommend confirmation of Mr. Gray unless he assures it that the practices
described above will not continue and that proper institutional safeguards will
be established to prevent their recurrence.
II. Political Harassment
There is substantial evidence that the Bureau has engaged in activity other
than infiltration of groups which appears unrelated to legitimate criminal investi-
gation and which serves to harass political groups engaged in protected First
Amendment activities.
USE OF THE PRESS FOR POLITICAL PURPOSES
According to former agent Robert Wall, the following procedures of the Bureau
were part of its '•Coiutelpro-Xew Left" program :
a. "A frequent tactic was to leak stories to the press and television shortly
before any mass march or rally. This was easy enough to do. Agents in our
offices would write often fanciful press releases warning that violence was
expected on the day of the rally, or that the organizers of the march were in
contact with Hanoi, or that some known communists were active in orga-
nizing the march. Our superiors in the Internal Security Division at the
FBI headquarters would then i>ass on the information to conservative news-
papers, which published it immediately. The pnrpose of such stories was not
only to influence the general public but to scare away those whose commit-
ment was weak and thereby reduce the number of persons who might other-
wise attend."
b. Another purpose of the program was to create dissension among various
new Left groups.
c. Agents would also try to confuse peace demonstrators by distributing
flyers with misleading information.
465
OTHER EXAMPLES
d. According to the Media documents and tlie book, it i.s a Bureau policy
to create the appearance of -'an FBI agent behind every mailbox." [QMBD]
e. According to Mr. ATall, in early 1969, the Bureau gave the Internal
Revenue Service the names of '-known militants and activists" for tax
investigation.
f. The television newspaperman, Daniel Schorr, found himself the subject
of an FBI investigation for a government job he did not know he was being
considered for.
In this area, the Senate should assure itself that the nominee recognizes that
the Bureau should be politically neutral and has no responsibility to influence
the course of political events.
Mr. Gray should be questioned further by this Committee to see whether the
practices are continuing. The Senate should assure itself that proper institutional
safeguards will be established to prevent their recurrence.
III. Electronic Surveillance
In United i^tates v. United States District Court (1972), the Supreme Court
ruled that information from warrantless government wiretaps would not be
admitted in court and that this rule applied even in national security cases. Until
this case, the Bureau had been using the authority in the 1968 Crime Act to
wiretap mainly in gambling and drug cases. It had not been using the Act as the
basis for "national security" taps, which it conducted without w-arrant, although
it was tlie national security area that had been cited in requests for wiretap
legislation before 1968.
The Bureau may still use warrantless wiretaps and electronic listening devices
in national security ca.ses where it does not intend to offer such information in
•court. Tlie Act prohibits national security wiretaps without judicial warrant
■whetJier or not the information is going to be used in a cinminal proceeding.
The following evidence indicates the need to inquire very closely into the
Bureau practice with respect to electronic wiretapping.
(a) Victor Navasky and Nathan Lewin report in tlieir article in Investigating
The FBI that FBI figures do not reflect the FBI's access to non-federal wiretaps
and bugs. But as one recently retired Justice Department ofiicial told them, not
only do agents have access to state and local electronic eavesdropping, but :
"When I was there agents routinely inspired bugs and taps by others.
They'd go to state and local police agencies and say, look, do us a favor. The
local guys would get the information and there'd be nothing in the FBI files
to indicate where it came from. It's a loophole, like the tax laws. They'd
use the loophole."
(b) FBI reports liave ahvays been issued in terms of wiretaps, "in Bureau
■cases". However, there may be at least three other areas in which the Bureau is
involved in wiretapping which it has not disclosed. These include long-term
embassy taps which were put on in the first place — some as long ago as during
World War II — not at the instigation of the FBI, but of other agencies, such as
the State Department, but which the FBI services. They also include taps re-
quested by foreign intelligence agencies, such as the CIA, which are not permitted
to tap domestically, yet have domestic intelligence needs. The FBI may handle
these taps and absorb the information received. Finally, the FBI may l^e inter-
cepting teletype messages which it does not consider a wiretap and therefore
which it does not discuss in its periodic reports.
(c) Messrs. Xavasky and Lewin also report that there may be unauthorized
taps and bugs. They write.
"Former agent [William W.] Turner is quite insistent that the "suicide
tap" — wiierein an agent, knowing that if he is caught he will be dismissed,
neverthele.ss, under the pressure to produce, conducts illegal, unauthorized
surveillance on an ad hoc basis. Most authorities on the FBI find stories of
hit-and-run taps difficult to credit, since "Mr. Hoover runs a tight ship."
and "Why should an agent risk it?" Nevertheless, Turner, who attended the
FBI's sound school in Washington, D.C., and monitored Bureau taps for a
year and a half in the Bay area, points out. "All I know is that I did it and
the term "'suicide tap" is a common term. You hear it whenever agents
gather."
466
In view of these facts, Mr. Gray should lie questioned as to the extent of elec-
tronic surveillance carried on today by the Bureau with or \Aithout court ap-
proval and whether it is done by the Bureau on its own behalf or for others. He
should also be questioned about the safeguards established to prevent un-
authorized '-suicide" taps. He should also be questioned about procedures
the Bureau has for assuring itself that information obtained from other police
agencies is not the result of illegal electro!iic surveillance or wiretaps. He should
also be asked whether the Bureau maintains that it has any legal basis to con-
duct electronic surveillance or wiretapping other than the 1968 Crime Act.
The Committee for Public Justice believes that the FBI should engage in no
electronic surveillance of American citizens unless it complies with the pro-
cedures of the 196S Crime Act. including the requirement for prior judicial ap-
proval. Furthermore the Bureau should take steps to assure itself that these
procedures are not compromised by '"suicide" taps or the use of other agencies.
IV. Invasion" of Privacy by Collectiox and Dissemination of iNFORiiAxioN
The Bureau receives 29.000 sets of fingerprints daily: 13,000 are from law en-
forcement agencies (1970 figures). Mr. Gray himself said that there are over
60 million fingerprints on file and that the Bureau keeps millions of other personal
files on American citizens. This raises questions about the control, accuracy, use
of, and access to this sensitive material. The problem is aggravated by the fact
that the Bureau controls the National Computer Information Center.
According to Mr. Gray and special agent Beverly Ponder*, the Bureau has no
control over the re-dissemination by recipient agencies of information in its files.
Although a 1965 Hoover memorandum makes denial of access to Bureau files the
penalty for "unofficial" use, only four agencies, all law enforcement, have been
barred in the last ten years. The Bureau does not define "official use."
According to Aryeh Xeier's article in Investigating The FBI, of the seven to
eight thousand pntlie agencies that received Bureau information in 1970, less
than half were law enforcement agencies.
In addition to the lack of control, the use of FBI information raises other
serious problems. According to Professor Thomas Emerson's chapter in the FBI
book, FBI files are available to loyalty-security investigators, state legislative
committees and Congressional committees. Emerson also cited evidence tliat
private collections are also fed by FBI files and that Brownell, Truman and
Hoover have used FBI information for improper purposes. Examples of local use
are given by Neier.
Despite Mr. Gray's expressed concern about this problem, we are not satisfied
that the Bureau makes sufficient efforts to learn final disposition of a case follow-
ing an arrest. And the Bureau does not distinguish between juvenile and adult
arrests despite state laws requiring confidentiality of juvenile records.
In contrast to the Bureau's procedures allowing dissemination of the mere fact
of arrest, civil service forms request only conviction information.
Neier demonstrates that the effect of information dissemination on the lives
of individuals whose names are in FBI files is often to trap them in a "record
prison" so that it is harder for them to get work, credit, bonded, etc.
Special agent Ponder said there is no procedure for challenging untrue in-
formation, or removing outdated material. We know that the FBI files contain
scurrilous material from anonymous letters, unfounded rumors and vicioiis
gossi]i. If. as i\Ir. Gray told this Committee, files on members of Congress con-
tain "rot" that he did not want even an archivist to see. we can well imagine
what files on ordiiiary citizens contain. Yet we know of no effort taken by the FBI
to purge this material or to strictly limit its dissemination.
Mr. Gray acknowledged that the FBI has purged inactive arrest records of
individuals age SO and older from the fingerprint files. This is an entirely un-
satisfactor.v response to the problem.
Mr. Gray should be asked who are the recipients of FBI arrest and conviction
records and whether they are ever jn-ivate agennes or organizations or nublic
agencies other than law enforcement agencies. He should be asked what pro-
cedures the Bureau has for preventing local and other law enforcement agencies
from further dissemination of information obtained from the Bureau. He should
be asked what sanctions the Bureau uses against misuse of such information
and how effective he has found them to lie. Finally, he should be asked what
procedures exist for challenging the contents of a citizen's FBI file where (a)
*This Informntion was given in n rloposition taken in Menard v. Mitchell, 328, F. Supp
718 (D.D.C. 1971).
467
the origiuating source for the information in the file is not the Justice Depart-
ment and (b) where it is the Justice Department.
We are also disturbed by Mr. Gray's offer to share the FBI's raw Watergate
files with the entire Senate. Apparently Mr. Gray believes that the way to control
the dissemination of uncorroborated data is to widen the circle of people eligible
to receive the information. We think Mr. Gray has adopted the wrong approach
and the Senate should reject the blanket release of this material even to Con-
gress. We suggest instead a small bipartisan oversight committee with procedures
to protect individual privacy.
V. INVESTIGATIONS OF LOCAL POLICE MISCONDUCT
The Committee for Public Justice is concerned about the reliability of the
Bureau's investigations of complaints against local police. The most recent vivid
example of the dangers of too close a relationship Iietween Bureau agents and
local police came during the investigation of the Orangeburg State College shoot-
ings. The FBI states, among other things, that the agent in charge of the investi-
gation shared a hotel room with the state police official he was supposed to be
investigating. Two of tlie three agents who witnessed the shootings claimed they
were not present but the Justice Department later learned otherwise.
At one time the complaints about the FBI in the civil rights area centered
on its failure to adequately investigate complaints by Southern blacks and Span-
ish surnamed Americans. The civil rights movement has shifted in the last few
years into political and economic organization — giving rise to some of the infiltra-
tion problems discussed above. But although tlte civil rights issues are less
prominent, the problem of local police invasion of the civil rights of minority
groups and political minorities remains.
The reduced visibility of the civil rights movement makes it all the more
important that the FBI remain energetic and neutral in investigating police
brutality and similar local allegations. A frequent charge in this regard has been
that the Bureau uses local agents, who are friendly with local police, to investi-
gate citizen complaints against these same local police.
Mr. Gray has stated that it is now FBI practice to assign, in so far a.s possiMe,
senior agents who do not have day to day dealings with the locnl police to conduct
investigations of allegations of illegal conduct on the part of police.
;Mr. Gray should be asked what "in so far as possible" means and what happens
when it is not possible to assign non local agents to investigate such allegations.
What other safeguards ai"e imposed to insure that citizen's complaints are given
adequate attention.
VI. Rights of Agents and Employees of the Bureau
FBI employees are not covered by the Civil Service Act. The history of the
FBI is full of examples of agents being punished for petty violations of rules
(e.g. being five pounds overweight, having sideburns beyond the maximum length,
removing a suit jacket while on duty, having a personal item like an airline
brochure in one's desk drawer). Former special agent John Shaw was forced out
after he wrote a letter constructively critical of the Bureau to a professor at the
John Jay College of Criminal Justice. Often the punishment is a transfer to a
less desirable location. Or special agents may be suspended or dismissed. Because
there is no Civil Service protection for this group of federal employees they are
literally at the whim of the Director.
Mr. Gray has made commendable changes in personnel policy. But much
remains to be done. Mr. Gray should be asked how he feels about criticism of
Bureau practices from individual agents — either to Bureau supervisors or other
professional law enforcement officials. He should be asked what avenues the
Bureau has for allowing constructive agent criticism and whether agents are
able to criticize Bureau practices without fear of reairisal. If this is the policy of
the Bureau, what efforts are made to make agents aware of it?
The Committee for Public Justice believes that in order for the Bureau to be
an effective organization, internal criticism should be encouraged, not punished.
The Committee sees no reason why special agents and other employees of the
Bureau should not have civil service protection.
468
VII. Public Accountability and Control
All of the problems that we have raised point to tlie importance of establishing
adequate controls over the FBI for the future, an issue which Mr. Gray has dis-
cussed. In the past .such control has not existed. In his lengthy letter, repi-inted
in the appendix of Investigating The FBI, Mr. Hoover argued that the Justice
Department, U.S. Attorneys, Judges, Congress and other bodies already exercise
sufficient control over the Bureau. But U.S. Attorneys and Judges can only review
matters that come before them. There is much the FBI does that is never seen by
a court. The Justice Department, as Victor Navasky shows in the FBI book, has
allowed the Bureau inordinate independence. And, as we mentioned above, the
last Congressional attempt to look into the Bureau occurred in 1921.
Congressional control through the budget process, effective with other agencies,
lias been lacking in the case of the FBI : Mr. Hoover had always received his
requested appropriation, except twice when he received more than he asked for.
Furthermore, the FBI budget is, except for a few items, appropriated in a
lump sum, to be spent as the Director chooses, though most other agencies have
detailed line budgets.
Pul)lic control should come in two ways. First, there should be an assertion of
executive and legislative controls, including budgetary ones. Second. Professor
Emerson has suggested two new institutions — a. Board of Overseers and an Om-
budsman—to give private citizens a say in Bureau policy-making and redress
agaia.st individual abuses or denials of rights.
Mr. Gray has offered to work with the Judiciary Committee to develop a
svstem of Congressional control over the Bureau's policies and operations. That
offer should be accepted. At the very least this Committee or another appropriate
Committee of Congress should review FBI procedures and activities yearly and
a select bipartisan group of Congressmen should be responsible for on-going over-
sight.
Mr. Gray should be asked whether he believes that the FBI is subject to ade-
quate controls within the .Justice Department?
What does he believe these controls are and how does he believe they may be
improved. He should also be asked whether he thinks there is a problem presented
bv the fact that the Attorney General and the FBI Director have political
loyalty to the same President. He should be asked whether the FBI .should con-
tinue to have a lump sum rather than a line budget and what is the justification
for this arrangement.
QUALIFICATIONS OF THE FBI DIRECTOR
The Director of the FBI should have the personal qualifications and profes-
sional skills we expect of the men and women who occupy the highest offices in
our land. This position is too important, its powers too great and its effect on
American liberties too vast to compromise on anyone less than the best.
The FBI Director should be thoroughly acquainted with law enforcement tech-
niques and principles. He serves as the model for hundreds of thousands of law
enforcement personnel throughout the nation. He must be a model they can
respect and emulate. The Bureau itself cannot be expected to surpass the qualities
of its Director.
The Director of the FBI must have a commitment to professional responsi-
bilitv that transcends loyalty to any political point of view or individual, even
the individual responsible for his appointment. Only then can he do his job free
from political interference.
The FBI Director must be fiercely independent and non-partisan. He should be
capable of trust from persons of all political viewpoints.
The Director's integrity and commitment to truth should be beyond question.
He should appreciate not only the need to avoid the political arena but the need
to avoid the appearance that he has any political obligations in conflict with his
law enforcement responsibility.
The Director of the FBI must have a strong allegiance to civil liberties and
civil rights of Americans because he. as much as any elected or appointed official,
has the power to affect these liberties and rights. And this commitment should
not be one he adopts at the time of his appointment, but one that has been
reflected through his entire professional career.
The Director of the FBI must understand and respect the limits of his own
power because it is in the nature of the position that often he will have only his
own self-restraint to rely on in carrying out his duties.
469
Needless to say, there are few individuals who have all or most of the qualities
listed here. That should not surprise us. The Director of the FBI is an extraor-
dinary position. An extraordinary person is required to fill it. The fact that
Supreme Court Justice Byron White was suggested for the position is an indica-
tion of the calibre of the individual the post requires. The American people should
settle for nothing less than excellence. The Judiciary Committee must carefully
consider whether the current nominee meets these standards of excellence.
Mr. DoRSEN. I am a professor of law at New York University and
I am speaking here today as chairman of the committee for public
justice, which is an independent organization affiliated with the
American Civil Liberties Union Foundation. The committee is an or-
ganization of about 120 prominent citizens that is concerned about and
conducts studies relating to individual rights and civil liberties.
The most important aspect of our testimony flows from the fact that
we were the sponsors of the Princeton conference on the FBI that was
held about a year and a half ago that culminated in the book "Investi-
gating the FBI" that was just published, edited by Pat Watters and
Stephen Gillers, who is to my right. To my left is Mr. Leon Friedman,
a New York lawyer, who is executive director of the committee for
public justice.
We followed up the Princeton conference with correspondence and
meetings with Mr. Gray. The two cochairmen of the conference, aside
from myself, were Prof. Duane Lockard, chairman of the politics
department at Princeton, and Dean Burke Marshall, formerly Assist-
ant Attorney General for Civil Rights.
INIr. Lockard, Mr. Marshall, and I met with Mr. Gray at some length
during the summer. We raised a number of points with him of concern
to us, and we then wrote him a letter, on July 18, 1972, specifying our
concerns. He replied on August 4, 1972, and I would request permis-
sion to put these materials into the record.
Senator Hart. Without objection.
[The letters referred to follow :]
Committee for Public Justice,
A'ety York, N.Y., July IS, 1972.
Hon. L. Patrick Gray,
Acting Director, Federal Bureau of Investigation, Department of Justice,
Washington, D.C.
Dear Mr. Gray : Duane Lockard, Burke Marshall and I were pleased to meet
with you on June 27. We think it was a constructive session and were glad to
have an opportunity to express our views on many of the matters that trouble us
and other members of the Committee for Public Justice regarding the operations
of the Bureau. We are encouraged that you share our interest in further
meetings.
For the present, it may be helpful if wo briefly summarize here our principal
concerns and the subjects on which we would appreciate your reaction, either
by clarifying Bureau policy or by providing additional information.
1. Political Investigations, i'erhaps our deepest concern is the appearance or
fact of the Bureau's infiltration or surveillance of unpopular or minority groups.
Such activity, as you know, tends to frustrate first amendment rights of their
members to association, petition and speech. We were pleased that you recognized
this as a problem. We would welcome a statement from you that the Bureau does
not intend in the future to conduct political surveillance where there is not
probable cause to believe that a crime lias ')pen, is being, or is imminently about
to be, committed. We also will be interested in your eventual conclusions on the
question of separating the conventional law enforcement activities of the Bureau
from the counter-espionage work, the practice in almost all other Western
Democracies.
2. Bureau Files. Following up Mr. Marshall's suggestion at the meeting, we
think it would be desirable if vou ^ould publicly clarify your earlier comments
regarding "secret" files. On reflection we are still uncertain about what your
470
•comments at our meeting signified with respect to tliese files. In our judgment
this subject is a source of apprehension throughout the country, and therefore
shouhl be given a high priority.
3. Control Over Data. The widespread dissemination of unverified data to state
and local units, including private organizations and public Ixidies not charged
with law enforcement responsibilities, presents a grave problem of inaccurate
labelling and large-scale invasions of personal privacy. As we understand it from
our discussion, there is no real control over the accuracy of the input or the use
of material by the receiving agencies. We were gratified by your recognition of
the various aspects of this problem, and we would like to learn from you the
degree to which there is such uncontrolled dissemination of raw data and your
plans for remedial action.
4. Arrest Reconl.s. A particularly poignant aspect of the unwarranted i-elease
of information is the practice of disseminating data concerning arrests which
did not result in conviction. The harm to the i>eople concerned is obvious, particu-
larly to juveniles, whose entire futures could be jeopardized. In addition, when
innocent persons are barred from employment or licenses, they can be driven in
the direction of crime — ^exactly the opposite of what is intended or desirable. We
will appreciate y<nir views on this matter, including your reaction to the Ervin
Amendment now pending in the Congress that would be a first step in dealing
with the arre:*t record problem.
5. Relations with Local Police. We are glad that you intend to assign senior,
non-legal agents to the investigation of allegations of police brutality to assure
that citizen eompiaints will receive and be seen to receive fair and full attention
from the Bureau. We think this would be a major step forward for the Bureau's
reputation and for the opportunity of citizens to receive a fair investigation in a
most sensitive area.
6. Civil Rights. We wex-e plea.sed to learn of your intention to institute an
affirmative action program to assure tlie hiring of non-wJiites. We recognize the
difficulty of this task, and that great effort and resourcefulness will be nece.ssary
to achieve the goal. We hope you will also take steps to increase the training
agents receive in the investigation of violations of law related to civil rights and
discrimination. As we all agreed at our meeting, this is one of the most serious
problems confronting us all at present.
7. Reports. Although the Bureau has provided annual reports for many years,
many o)>servers have found them insufficiently informative. There have also been
questions raised about the statistical methods used. We think the country needs
a full analysis of Bureau priorities and activities, and we therefore hope that
you will give some attention to the presentation of fuller reiwrts to the public.
8. Citizen Advisory Panel. We reiterate our support for the appointment of a
responsible group of persons, representing a cross-section of the community, to
advise on matters affecting the Bureau. Particularly in view of the Bureau's
somewhat cloistered history, this would be widely seen as evidence of your inten-
tion to introduce national participation in the work of your sensitive agency, or
as you recently put it, "to open the window a little."
We look forward to hearing from you on all these matters, and to further
meetings with you when they can be helpful. We think that it would be mutually
beneficial if .such meetings involved a broader group in order to enal)le us to
provide and you to receive a range of views concerning the important issues you
and your colleagues will be facing in the coming months.
In addition, toward the end of our meeting you said there were factual errors
in the book on the Bureau that we will be publishing based on the October con-
ference in Princeton. It is not too late for changes to be made, and we therefore
vrould be pleased to receive from you or your staff a list of any factual errors in
the manuscript.
Sincerely,
NOBMAN DORSEN.
U.S. Department or Justice.
Federal Bureau of Investigation,
Washington, B.C., August 4, 1972.
Mr. Norman Dorsen,
Chairman. Executive Council, Committee for Puhlic Justice, 23 West 9th St.,
New York, N.Y.
Dear Mr. Dorsen : Thank you for your letter of July 18. Your comments are
of interest and I am considerLng them in the course of my continuing learning
process.
471
Rather than to respond nosv to your comments, I will endeavor to do so at a
future meeting in our continuing dialogue.
I would, however, like to correct one apparent misunderstanding with regard
to the topic you titied "Relations with local police." I said that it is and has been
FBI practice to assign, insofar as possible, senior Agents who do not have day
to day dealings with the local police to conduct investigations of allegations of
illegal conduct on the part of police.
I look forward to continuing our discussion, and will give careful consideration
to your suggestion that our meetings should involve a broader group of people.
Sincerely yours,
L. Patrick Gray III,
Activg Director.
Mr. DoRSEN. I slioiild say in connection with the Princeton Con-
ference, before we get to some of the points that we would like to
stress here, we understand Mr. Gray testified before this committee
that a speech that he made in Cleveland before the last election was
designed to be a response to some of the points that we raised at the
Conference, and that I raised with him on behalf of Marshall, Lockard
and mvself in my correspondence. We have here a memoiandum dated
June 27, 1972, from T. E. Bishop to Mr. Felt of the FBI staff, subject :
"The City Club, Cleveland, Ohio, Request for Appearance of Acting
Director Gray. August 11, 1972." And Mr. Bishop in this memorandum
suggests the Ivind of things that might be the subject of Mr. Gray's
talk and the fact that Mr. Gray was in fact invited by the City Club.^
Mr. Gray wrote on the bottom of this memorandum in his own hand
as follows: "Conceptually let's try a speech responding factually to
criticisms of the Princeton Conference without identifying. Let's be
positive."
"We have examined the Cleveland speech, which I understand was
suggested to have been a political speech. We are not here to say
Avhether or not we think it was a political speech, but we are here to say
we have examined this talk, and it does not respond to the points that
we raised with Mr. Gray. It is not a talk that responds to the civil
libertarian concerns that animate the Committee for Public Justice.
With respect, we feel that the main issue before this committee is
not ]Mr. Gray. We think the main issue before this committee is the
Federal Bureau of Investigation and we also say, with respect, that
despite the forceful questioning that many of the Senators have en-
gaged in with Mr. Gray, that there has been inadequate attention paid
during these hearings to the problem, to the central problem, facing
the American people.
The FBI over a period of many years, as witnesses have testified,
has done a fine job in certain instances in law enforcement but it has
also done a number of other things that seriously threaten individual
rights in this country, and in our opinion we think this committee
should give much more attention to these questions than it has so far.
I might say in passing we were very pleased this morning to read
in the newspaper that President Mxon agreed with the American
Civil Liberties L^nion that certain types of information should be kept
confidential. We hope that the President, his staff, and this committee
will be consistent with that philosophy, and take pains to examine quite
closely the various problems involving civil liberties and the Bill of
nights that this nomination presents.
Our second main concern is public control of the Bureau. The real
difficulty that the stewardship of Mr. Hoover presented, even apart
from tlie fact that many people felt that he was not as sensitive to
472
individual liberties as he might have been, is that the Congress of the-
United States did not fulfill its responsibility to oversee, to observe,
to get information, to control on behalf of the American people, one
of the most imi^ortant institutions in American life.
Virtually every problem with the FBI that we have identified in
our prepared statement can be traced to the fact that there has been
insufficient control through the budgetary process, through the acquisi-
tion of information by Congress, and by other means.
Whether or not Mr. Gray is confirmed, there will be a new Director
of the FBI, and we hope that this committee and other committees of
Congress will not repeat the errors of the past, and will investigate
boldly and decisively some of the matters that are of concern to us and
we believe to a large number of Americans.
Our position here, to be quite explicit, is we think that nobodv
should be confirmed as Director of the FBI — this includes Mr. Gray,
and it includes anyone else who might have been or might be nomi-
nated for the position — unless he gives satisfactory assurances to the
Senate that he will take steps to end well-documented practices of the
Bureau that threaten first amendment and other constitutional rights
of American citizens.
These practices include the following:
1. FBI infiltration in its surveillance of unpopular or minority
groups and individuals engaged in political and not criminal activity.
I might say that the testimony this morning by Congressman Koch
underscores this point.
2. Interfering with, monitoring, spreading false rumors about or
photographing public demonstrations.
3. Engaging in wiretapping or electronic bugging without a warrant
for any purpose.
4._ Invasion of privacy by the collection and dissemination of infor-
mation about individuals.
6. Inadequately investigating local police misconduct.
6. Placing unnecessary restrictions on the rights of agents and other
employees of the Bureau.
Each one of these six themes is developed at some length in our
prepared statement. Each one of them is documented, not by generali-
ties, not by expressions of political wishful thinking, but by concrete
testimony that took place at the Princeton Conference and in other
reliable sources. We, therefore, respectfully suggest to this committee
that ]Mr. Gray should be recalled and asked explicitly what his policies
are with regard to each one of these matters.
He should not be confirmed nor should anyone be confirmed unless
he is prepared to give this committee, and the Senate as a whole, and
the American people, assurances about each of these matters. This
should be done forthwith.
The political investigations have already been brought to the com-
mittee's attention. They involve infiltrating political and antiwar
groups, groups of black Americans, and others. The extent of it is vast.
It is not at all trivial. We are not a political organization, we are not
here to testify on a political basis. I believe, in fact I assert, that we
would be presenting the same testimony no matter which party was
making the nomination, no matter who the nominee was, whether he
was a Republican, a Democrat, or an Independent. There are certain
473
issues in this country that transcend politics. One of them I like to
think is the Bill of Rights and. the problems that every country
throughout the Tvorld is grappling with regarding liberty.
Apart from political infiltration, there is the use of the press for
political purposes that Ave document through the testimony of a former
FBI agent, liobert Wall. Man}- examples of harassment, many exam-
ples of taking steps to undercut political views that do not appeal to
the people who were making the decision.
Electronic surveillance, despite the U.S. Supreme Court's decision
a year ago, is far from ended as a problem in this country. The evidence
is that there is much electronic eavesdropping and wiretapping that
has not yet been subjected to regulation. This is documented in our
prepared statement.
Invasion of privacy is a problem that I am sure everyone in this
room and everyone in a position of authority in this Government can
.sympathize with. People who are barred from jobs, blacklisted on the
basis of arrest records, even though they were guilty of nothing, con-
victed of nothing, and found by the courts or the district attorneys to
b>e innocent people. There are thousands of people walking the streets
of this country who are unable to acquire gainful employment because
the fact they were once "arrested" has been disseminated to thousands
of law enforcement groups and employers. This is documented in our
iDook and is discussed in our prepared statement.
Xext is local police misconduct. Who has li^'ed through the decade
of the 1960's and not seen the kind of tensions that investigations of
civil rights groups or right-wing groups have caused? I think the
least that one can do in this area is to try to see to it that the investiga-
tion by the FBI is conducted by people who have no individual rela-
tionship to the events or people that they are investigating. There are,
unfortunately, examples which we refer to where this has not been
the case.
Mr, Gray has stated that it is now FBI practice to assign, "msofar
as possible," senior agents who do not have day-to-day dealings with
local police to conduct investigations. What does "insofar as possible"
mean ? I respectfully suo-gest that Mr. Gray be recalled and asked what
that means. This is not a minor matter. People are deserving of an
impartial investigation.
We will not say more than we have already in the testmiony about
the right of agents and employees of the Bureau, but I emphasize that
the problem of control, which I referred to already, is of crucial impor-
tance. There must be an assertion of executive and legislative controls,
including control over the budgetary process. Mr. Hoover always got
the amount of money that he requested, except on two occasions, and
on those he was given more money than he asked for. There are not
many people in positions of executive authority in this Government
who'have a comparable record. -, , -^ j,
The second type of control is one that has been suggested by Profes-
sor Thomas Emerson of Yale Law School, that we ought to have a
board of overseers or an ombudsman to give private citizens a say m
Bureau policvmaking. This proposal is in response to the fact, as
Mr Grav has testified, that no other institution in American Govern-
ment has the admiration of as many people as has the FBI, and no
institution is as feared bv the American people. The FBI moves, to
474
paraphrase Mr. Gray's language, ''tliorouglil}' and completely into tlio
life of Amei'icans." I will reiterate here, because there are political
overtone,s to this nomination hearing, that we are not speaking about
politics, we are not speaking of Eepublicans or Democrats or blacks
or whites or war protesters or anti-war protesters. We are speaking
about the problem of preserving the free institutions of this country.
^A%en one stoics back a bit and thinks about the few words I ha\e
said and the te:timony that you have liad from others, one might sa\'.
"Well, who is fit to be the Director of the FBI I What kind of person
is it ? Is there anyone who measures up ?■'
Our position is very simi)le : That the qualifications for this job
should be those that are equivalent to the highest posts in the land, a
Justice of the IT.S. Supreme Court, the top advisers to the President.
He should be thoroughly acquainted with law enforcement techniques
and principles, he should be thoroughly acquainted with the police
professionalism that is necessary to lead an organization of this kind.
Only if he is a person trained and experienced in this way can he do
his job free from political influence.
Needless to say, the Director must be fiercely independent and non-
partisan. I will not add what I think is obvious, that he also should be
devoted to civil liberties and civil rights because I hope that everyone
here would agree to that.
The Director of the FBI is in an extraordinary position, and an
extraordinary person is recjuired to fill it. The fact that Supreme Court
Justice Bvron '\^^lite was suggested for the position is an indication
of the caliber of the man or woman that the post requ.ires, and the
American people should settle for nothing less than excellence.
I will close by saying this : I have tried, because of the exigencies of"
time, to sunnnarize and merely allude to the jjoints that have been
made in the book and in our prepared statement. I hope that when this
committee meets in executive session, when it stops to think where it
is at, where the people are at, and what this problem means foi- tlie
future of this country, that they will recall Mr. Gray, that they will
begin to ask Mr. Gray more questions, more pressing cpiestions, on
some of these matters.
Let me give one example. Mr. Gray said, in response to an inquiry
about investigations of political activity, that now the Bureau investi-
gates or infiltrates only groups that advocate violence or engage in
violence.
In our judgment that is an insufficient response. What does "advo-
cate violence'' mean ? The Supreme Court has many times drawn dis-
tinctions between types of advocacy. One is the theoretical kind of
advocacy that in many cases the Supreme Court said is perfectly law-
ful. But: even apart from that, which may appear to the nonlawyers
as perhaps too much of a legal point, what are the examples of orga-
nizations that are infiltrated ? "^Miat are they exactly ?
Perhaps this is information that would have to be given to you in
executive session, but T should think you would be veiw interested to
know and see what criteria are being used. I say to the people here who
may be sympathetic to Mr. Gray for one reason or another, if one type
of organization can be investigated and infiltrated today, another type
of organization can be investigated and infiltrated tomorrow.
One of the greatest things about the late Justice Hugo Black was
that he was not a person for civil liberties for one side or the other but
475
he saw before most of us that respect for the Constitution and Bill of
Eights has two sides to it. While one might be happy to see the other
fellow's rights denied, situations change. From my reading of Amer-
ican history and the teaching of constitutional law for 12 3-ears, I am
as sure as tliat we sit here today that some of the partisans of Mr. Gray
or of any other nominee may one day feel the lash of inquiries, investi-
gations, and infiltrations that all of a sudden will appear to them as
being unconstitutional and unconscionable.
I make no aspei^ions about Mr. Gra}^ as an individual. We had a
very pleasant visit with him, but we are not dealing here with an
individual matter. "We are dealing here with some of the most basic
principles that underlie our Government and our Constitution. I urge
this committee with all the force I can, not to look at this in a partisan
way, not to look at this as a Democratic or a Republican appointment,
but to look down the road.
I would like to end on this note. If infiltration, if violations of the
Bill of Rights, can take place by one side, I promise you that the}^ will
take place by the other — all to the everlasting regret of all of us con-
cerned with the preservation of our historic liberties.
Thank you very much.
Senator Hart. Thank you very much, Mr. Dorsen.
As you summarized it, I was leafing througJi your prepared state-
ment.! will say that you described it correctly as containing specifics.
I should explain that it was and is the intention of at least some of
us on the committee to ask questions of Mr. Gray that bear on the
structure of the Bureau. I think that was indicated to him tlie first day
he was here. A continuity then began to develop in questions in regard
to specific events which have occurred during his brief incumbency and
it was thought generally wise to allow that to go forward, and to delay
until his later appearance the basic inquiry such as you suggest the
com.mittee should carry out and which we will.
Mr. Dorsen. Thank you.
Senator Hart. Senator Fong.
Senator Foxg. Thank you, Mr. Dorsen, for your discourse on the
scope and the breadth of the things which we should look into in these
liearings as to what the FBI should be doing and should not be doing.
I promise you that this connnittee will give that very careful
consideration.
Mr. Dorsen. I am grateful to you, and especially for allowing me to
testifv at the time I have.
Senator Fong. This committee, the members of this committee are
concerned with the same things as you are.
:Mr. Dorsen. Thank you very much.
Senator Hart. Thank you.
We will recess now to resum.e at 2 o'clock.
[Whereupon, at 1 p.m., the committee recessed until 2 p.m. the same
day.]
afternoon session
Senator Hart. The committee will be in order.
Our opening witnesses for this afternoon are Mr. Jack Anderson^
the newspape? columnist, and Mr. Les TSHiitten, his associate.
Gentlemen, we welcome you. You may proceed.
476
TESTIMONY OF JACK ANDERSON, NEWSPAPER COLUMNIST
Mr. Andersox. I have a written statement, Mr. Chairman.
My name is Jack Anderson. I am here to oppose the nomination of
Jj. Patrick Gray III as Director of the Federal Bureau of Investiga-
tion.
My opposition is not based on personal animosity. My research into
Mr. Gray's background shows him to be, in many ways, an exemplary
citizen. He had a distinguished career in the Navy. He was respected
during his years as an attorney in private practice. He sat on the high
councils of ISIr. Nixon's presidential campaigns in 1960, and again in
1968.
It is this last qualification that disturbs me. Generally, I believe
that a President's appointees should be responsive to the President ;
that they should be emphatic ; that they should share a similar philos-
ophy ; that the appointee should execute policy the way the President
Vv-ants it executed.
Yet, I think we will agree that the post of FBI Director is diffei-ent
from all other jobs in an administration. It is not a policymaking posi-
tion, at least in the usual context. The only policy of the FBI should
be truth ; the Director should be the man who is best able to motivate
his agents to find the truth. All the other considerations — political
conformity, personal loyalty, rewards for past favors — should be
totally unimportant.
I think it is immeasurably wrong to put a man in charge of the FBI
whose prime interest is pleasing the President. On more than one oc-
casion, jMr. Gray has proved that his antennae are acutely tuned to
the White House wave length. This is a luxury that neither the Nation,
nor, in the long run, the White House itself, can afford.
I am afraid that I have a reputation for being blunt when I speak
of people in power, no matter which branch of Government employs
tliem. I hope you will forgive me today for living up to that reputation.
In all his actions since he became a civilian in 1960, Mr. Gray has
proved himself to be a political hatchetman for Eichard Nixon. That,
I believe, is whv he was nominated to succeed J. Edgar Hoover. It is
certainly why I am here today to oppose confirmation of his nomina-
tion.
There were times when I criticized Mr. Hoover's leadership in the
FBI. "\¥lien he was young and vigorous, he took command of a corrupt
bureau staffed with a sorry collection of misfits, drunks, and even
blackmailers. He quickly transformed it from the house of political
prostitution, which it certainly was, into a formidable law enforce-
ment agency that enjoyed the respect and trust of the Nation.
As the years went by, I am afraid there was some erosion in the
principles Mr. Hoover initially laid down. From time to time, political
favors were done. Juicy bits from the Bureau's raw files were boot-
legged to people in high position, possibly even to some members of
this committee. Political dossiers began to appear in the Bureau's files,
along with those of criminals. The Bureau collected information on
citizens simply because they opposed the policies of the men in the
l'\'liite House, or because they apparently had exotic sex lives, or — in
an astounding number of cases— simply because they were black. This
politicization of the FBI, I believe, was a perversion of the Bureau's
purpose.
477
I am old enough to understand that no liuman institutions ai-e per-
fect, and that none of us in the human race are perfect. J. Edgar
Hoover made mistakes, and we found out about some of them. I sup-
pose there were otlier mistakes we did not find out about that also had
a deleterious etl'ect on the FBI. But no serious person ever accused
Hoover of running a political police force. Not even me.
I am no longer sure that the label does not fit. Mr. Gray's testimony
here regarding the investigation, and the failure to pursue certain
aspects of the investigation, of the "Watergate bugging scandal indi-
cates either that he is a far more naive man than one would expect for
someone with his background, or that he supposes the members of this
committee and the press are far more naive than we should be. I do not
think ]Mr. Gray is a naive man.
His Watergate testimony is not an isolated example. Shortly after
he was appointed temporary director of the FBI, Mr. Gray called in
the reporter and told them, and I quote : "None of you guys are going
to believe this — and I don't laiow how to make you believe it — but
there are no dossiers or secret files."
Just as Mr. Gray suspected, a lot of people didn't believe him, and I
must admit I was one of them. But, I did try to set him straight, with
a list of names of Americans on whom the FBI does keep dossiers and
secret files. I even provided the file numbers on these dossiers so Mr.
Gray could easily locate them. Whether he will admit it or not, the
FBI has those secret files. And I have photostats of some of them, in
case the members of this committee have any doubts.
Wo have waded through several hundred FBI memos, slipped to us
from the files of politicians, newsmen, movie stars, football heroes, and
other prominent Americans. Our purpose was to prove, in black and
white, what many Americans had begun to suspect — that the FBI has
been keeping dossiers on people who have committed no crime and are
not likely to connnit a crime, that the FBI has been prying into the
bedrooms of prominent people for no other purpose than to collect
gossip for the files, that the FBI has been investigating people because
of the opinions they hold not the deeds they do.
I submit, Mr. Chairman, this is the sort of thing we expected in Nazi
Germany, or Stalinist Eussia. It is intolerable in the United States of
America. The FBI has gone beyond its jurisdiction, beyond its consti-
tutional authority, beyond what is proper. The FBI must never become
a political ]:)olice force, working for the Government against the peo-
ple. The FBI should be carefully restricted to investigating criminals
not noncriminals, spies not tlie loyal opposition, subversives not
dissidents.
It is clear from the testimony before this committee that L. Patrick
Gray is not going to restrain the FBI, is not going to take the FBI
out of politics, is not going to restore the FBI to its proper place in
our democratic society. We have come before this committee, Mr. Chair-
man, to ask the Senate to intervene. Now is the time, and this is the
place, to serve notice upon the FBI that there must be hmits to police
power in a democracy.
We don't make these charges without evidence. We have brought the
evidence, documentary evidence, FBI reports. These reports are loaded
with raw gossip that has nothing to do with crime, unverified rumors
that have no place in Government files. We ask only that you satisfy
91-331 — 73 31
478
yourselves whether the FBI has been abusing its powers and that you
witliliold the scurrilous information from the public as we have done.
Let me read just one typical report. This is taken from what is known
as a "name check" report. Some Government agency requested informa-
tion on a famous movie and television star. The FBI went through
his file and wrote a summary of the fijidings. And I quote :
has not been the subject of an FBI investiga-
tion.
Let me depart from the text to ask why the FBI should have a file
on a man who is not the subject of an FBI investigation.
The document continues:
During 1965, however, a confidential informant reported that several years
ago while he was in New York he had an "affair" with movie star .
The informant stated that from personal knowledge he knew that
was a homosexual. The belief was expressed that by "personal knowledge" the
informant meant he had personally indulged in homosexual acts with
or had witnessed or received the information from individuals who had done so.
On anotlier occasion, information was received by the Los Angeles Oflice of
the FBI that it was common knowledge in the motion picture industry that
was suspected of having homosexual tendencies.
It is to be noted in May, 1961, a confidential source in New York also stated
that definitely was a homosexual.
Our files contain no additional pertinent infonnation identifiable with Mr.
'Let me depart from the text again just to say this is a report that
appeared on a man whose records, whose FBI files starts out by saying
that he is not the subject of an FBI investigation.
Another name check request brought forth this information concern-
ing a famous professional football player :
has been observed intoxicated on several occasions
and also reportedly had an affair with an airline stewardess who became preg-
nant as a result of this association. It is alleged that an abortion was arranged
for this girl by the wife of , the operator of a restaurant-
bar in New York. It is understood that the abortion had to be postponed due to
the arrest of "s wife on charges stemming from an
abortion ring operating in the New York area.
There are dozens of reports, equally outrageous, that the FBI has
been keeping on totally innocent American citizens. But the committee
members, we trust with the utmost discretion, can read the reports for
themselves.
The FBI's habit of prying into the private lives of prominent people
did not begin with L. Patrick Gray. But he has done nothing to stoj^ it.
On the contrary, he has turned over confidential FBI files to his politi-
cal superiors for political purposes.
Now I would like to go into some other cases that are nearer in time,
and closer to me because they directly aifect me. I am referring to the
arrest in January of my associate, Les Whitten.
Les is one of America's finest investigative reporters. He works very
long hours. He gets the facts straight. He also knows the law, and he
obeys it. Les does not steal documents — no matter how tempting their
contents might be — and no one else in my office is allowed to pilfer
papers, either.
We have another policy. Unlike the FBI, we do not pay informants.
We don't do it for two reasons. One is that paying informants is mor-
ally distasteful. The other is the quality of purchased information is
479
almost uniformly bad. People give us infomiation because tliey want
to see Avrongs righted, not because they want to enricli tliemsehes.
Mr, Gray testified here the other day that Les Whitten was arrested
after an informant said Whitten was to pay for and pick up a batch
of documents stolen from the Bureau of Indian Affairs last Xovember.
He did not and would not offer to pay for stolen documents. The infor-
mation attributed to the informant was fabricated. I don't see how a
l^rofessional police undercoverman, who heard what was said among
the Indians, could possibly have received and passed on such misinfor-
mation. I cannot bring myself to believe that the FBI fabricated. Yet
what Mr. Gray told this committee was fabricated,
AVe did run a series of columns detailing some of the abuses of
Indian rights and some of the abrogations of promises made to the
Indians. This information did come from BIA hies. The Indians who
stripped the files after their occupation of the BIA building gave us
photostats of that information. We merely extracted the news from
these documents. "We do not belie\-e the news belongs to the (xovern-
ment. We believe tlie news belongs to the people. The Indians, for their
part, were eager for the public and the Congress to know how wretch-
edly they had been abused.
Mr. AATiitten, as he told the FBI men who arrested him, was not
stealing the papers. He was covering the return of the documents to
the Government. The FBI's informant knew that. He was filmed by
ABC-TV less than 4 feet from the Indian negotiator, Hank Adams,
when Adams announced he was trying to get the documents back to
return them to the Government. In a few minutes, Mr. THiitten will
ofive you the names of others whom Mr. Adams had told about his
intention to return the documents. It was no secret.
Again, I do not believe, I cannot believe, that the FBI didn't know
about Mr. Adams' intentions, that the FBI informant never mentioned
the many times Mr. Adams talked about returnmg the documents, that
the FBI agents investigating the theft of the Indian papers didn't
even bother to read the newspapers which reported fully ]Mr. Adams'
intention to return the documents. In other words, I believe the FBI
knew full well no crime was being committed when eight agents ar-
rested Mr. AATiitten and :Mr. Adams. I believe Mr. Gray, in this in-
stance, was using the FBI deliberately, Imowingly to harass a news-
man.
Mr. Gray testified here the other day that the FBI checked with the
BIA, and could find no one who was 'expecting Mr. Adams. I have a
higher regard than that for the FBI's investigative ability. The arrest
was made at 10 in the morning about 20 minutes away from the BIA.
Hank Adams had a 10 o'clock appointment with Dennis Creedon, a
House investigator who had an office at the BIA where he was investi-
iiating Indian complaints. Mr. Adams intended to deliver the docu-
ments to ]Mr. Creedon, although I imderstand Mr. Adams did not
explain his purpose when he arranged the appointment. Mv. Whitten
found out about the appointment by asking IMr. Adams, then double-
checking with Mr. Creedon's office. Certainly the FBI, with all its
investigative experience, could have obtained the same information in
10 minutes.
Is it possible that the FBI knew precisely where :\Ir. Adams was
going, and didn't want him to get there? It would seem to me that if
480
the FBI really believed we had purchased purloined papers, the agents
would have waited until Mr. Adams and Mr. Whitten reached their
destination. The FBI is experienced at following people. Why didn't
the agents, if they thought JMr, "Wliitten was bringing the stolen docu-
ments to me, follow him to my office. Then they might have arrested
me, too. I understand I'm not too popular at the top level of the FBI.
Or at the White House.
But I suggest the FBI knew the papers were going to the BIA and
not to my office. That is why the agents stepped in when they did, with
all the great majesty of their office. It was a political arrest, pure and
simple. And it was yet another attempt to strangle the freedom of the
press guarantee of the first amendment to the Constitution. As you
well know, a grand jury here in Washington rejected out of hand the
charges against 'Mr. Wliitten and the others.
Let me quote a small excerpt from Mr. Gray's sworn testimony.
"Upon reviewing our records," he testified :
I learned on January 24, 1973, from information contained in a teletype from
our Washington field office that a Metropolitan Police Department ofiicer work-
ing in an undercover capacity had advised his superiors that he had heard Anita
Collins and Hank Adams had been conferring with Jack Anderson to buy docu-
ments stolen from the Bureau of Indian Affairs.
Now let me say under oath that never at any time did Anita Collins
and Hank Adams confer with me about buying stolen documents. In
fact, I never met Anita Collins until after her arrest. If Mr. Gray is
going to arrest newsmen on the basis of this sort of information, the
press is in jeopardy.
There is yet another worrisome detail stemming from the arrest of
Les AYliitten. It is the Government's seizure of the telephone records
of my home and my office. ]\Ir. Gray has told you that this was simply
an attempt to locate more of the Indian papers. He glossed over the
fact that these records predated the occupation of the BIA building by
4 months.
Mr. Gray said that the telephone records were used solely to attempt
to locate people who might have the papers, and that there was no
interest in our other news sources.
Now, gentlemen, I have heard from a number of telephone contacts
who suddenly have become aware of FBI inquiries about them. These
are not Indians.
One of those called by the FBI was Eobert Updike, a city prosecutor
in Phoenix. One might suspect FBI agents would know the names of
]irosecutors in the cities in which they work. And there is only one
Robert Updike in Phoenix. Mr. Updike is not an Indian.
In another attempt to locate the Indian papers, the FBI tried to
loarn the identity of B-52 crewm.en whom I reached by overseas phone
on Guam. There aren't many Indians on Guam.
You Imow and I know that reporters rely on their sources. We try
to cover the whole United States from Washington, and the telephone
is as important a tool to us as our typewriters. When the FBI manages
to intimidate our sources by violating the secrecy of our telephone
records, it has taken a giant step toward silencing those small voices
who believe the public is entitled to Imow more about their Govern-
ment than can be found in Government press releases.
To me, the FBI's actions in this case smack of censorship and prior
restraint. For access to the news is an essential part of our press
freedom.
481
I am not surprised it happened. The FBI has been, in varyins: de-
grees, a political agency ever since Mr. Gray took command last year.
It is difficult to suppose it will be less political after Mr. Gray is
permanently ensconced in the Director's office.
Gentlemen, for the first time in history, the Senate of the United
States has an opportunity to pass on the Director of the FBI and the
policies of that Bureau. We know there have been abuses by the Bureau
in the past. I urge you to prevent, as much as possible, future abuses.
To me, the greatest possible abuse would be to turn the directorship
into a political plum. And I can guarantee you, if Mr. Gray is con-
firmed as Director, we will never see the end of the precedent you set.
There will be a parade of political hacks and a mountain of corpses
left by political hatchetm.en. It seems ironic that the FBI should be
turned over to politics so soon after the post office was taken out of
politics.
The whole credibility of our form of government- — and believe me,
gentlemen, I passionately^ love our country — will sutler if you make
the wrong decision.
Keep the FBI out of politics.
Thank you.
Senator Haet. Mr. Anderson and Mr. Whitten, I am reminded b}'-
the staff that although this did not occur when I was chairman this
morning that all previous witnesses have testified under oath and that
the chairman desired their testimony be received under oath. May I
adminster the oath ?
Mr. Andt:rson". Please. We anticipated that it would be.
Senator Hart. Do you swear the testimony you are giving and shall
give in this proceeding is the truth, the whole truth, and nothing but
the truth, so help you God ?
Mr. Anderson. I do.
Mr. Written. I do.
Mr. Anderson. I am happy to take the oath retroactively.
[Laughter.]
Mr. Anderson. Mr. Chairman, I will be happy to answer questions
but for orderly procedure it might be helpful to hear Mr. "\^^iitten's
account.
Senator Hart, Thank vou.
Mr. Whitten.
TESTIMONY OF LESLIE H. WHITTEN, JR., ASSISTANT TO JACK
ANDERSON
Mr. Whitten. My name is Leslie Hunter Wiitten, Jr. I have been
principal assistant to Jack Anderson for the past 31/^ years. I have
supplied the committee with a brief biography.
On February 28th, Mr. L. Patrick Gray III testified about a case
involving me in which I was arrested, handcuffed, my notes forcibly
removed from my hands, and I was consigned to a cell block for 5
hours by his agents.
These events occurred on January ?>1, 1973, wliile I was covering
the return of three cartons of documents takeii fi'om the Bureau of
Indian Affairs last November. The return was being made through a
man at the BIA with wliom Indian leader Hank Adams Imd an
482
appointment. Both ]\Ir. Adams and I were arrested. We were charged
under a hiw designed for underworld fences, a charge rejected by a
Federal grand jury and then dismissed by the Justice Department.
Mr. Gray's leport to you of that incident, delivered in police report
style, was so inaccurate that it would make a rookie policeman blush.
In its two double-spaced pages, it contains no less than eight pieces of
false information, one of which was later corrected. Its omissions make
it even more misleading.
Here are tlie facts as opposed to the false information supplied to
you under oath by Mr. Gray. Some of what I say has already been said
by me to a Federal grand jury and written in the New York Times
under my own name. I submit the New York Times article for the
record if it may be done.
[The New Yoi'k Times article referred to follows :]
[From the New York Times, Feb. S, 1973]
Old Indian Refrain : Treachery
(By Les Whitten^)
WASHINGTON— At about 8:45 Wednesday morning, Jan. 31, I received a
telephone call at home from Hank Adams, a young Indian leader who had taken
part in the occupation of the Bureau of Indian Affairs building last November.
When the Indians all but razed the building and departed with tons of docu-
ments and other stolen material, Adams stayed behind in Washington to con-
tinue to talk with the Federal Government.
He was beginning to have success. The Indians were giving up some of the
stolen materials, and Adams, as evidence of good faith, was passing it on to
the F.B.I. He was satisfied he could put major stashes of the documents into
Federal hands within a few weeks, and in late January had advised B.I. A.
officials that the return of documents was "in the process of happening."
Because I had written a series of columns about the contents of some of the
other stolen papers, Adams notified me of the arrival of the cartons.
The 8:4.5 A.M. call from Adams was disappointing. He said the material was
not newsworthy, but was important to have in the B.I. A. files where all tribes
could consult it. I offered to help him transport the cai'tons. He told me he
had a ride.
I skipped breakfast and hurried over to Adams' apartment house. There, the
person who was going to give him a ride had not showed up, and we decided
to use my car. He called his contact at the B.I. A. and said he was "on the way."
The three cartons were marked with the name of an F.B.I, agent to whom
Adams had earlier returned some of the stolen material. Adams knew the B.I. A.,
after receiving the cartons, would probably call in the F.B.I, or send them to
the F.B.I, for examination.
Just as we were about to load the cartons into my car, a flood of F.B.I, men
descended on us. I produced pen and paper to make notes. These were snatched
from my hands and replaced with a set of handcuffs.
The arrest was made on the basis of information furnished by the "Indian"
whom Adams had expected to chauffeur him and the papers to the B.I.A. that
morning. The "Indian" turned out to be an undercover Washington policeman.
The F.B.I, agent to whom the boxes were addressed made a complaint.
We were driven to an F.B.I, office downtown where my notes were returned.
I was fingerprinted and photographed, although throughout, with the single
exception of the notes episode, the agents treated me courteously.
Finally, I was taken before a Federal Magistrates Court. After being released
on my personal recognizance I left the custody of the marshals to brood on
how a 44-year-old reporter came to be facing 10 years in prison and a $10,000
fine for trying to report the news.
The charge against me is that I "did imlawfuUy receive, conceal and obtain
three cardboard boxes of Government documents, books and records, with intent
to convert the said property and records to (my) own use or gain."
1 Les WMtten is an Investigative reporter for the Washington Columnist Jack Anderson.
483
As it happened, this particular group of documents included old legal opinions,
land records and, ironically, a volume of the U.S. Code. These were of no "use
or gain" to me as news or anything else.
But if I had been getting them "with intent to convert them to (my) own
use," what would the use have been? It would have been to chronicle this nation's
shameful betrayal of its native Indian people.
Such a "use" of Government documents — stolen or not — has been protected
by the Constitution and has been respected until recently by those responsible
for upholding it. Now all that is changing.
The Government is asserting ownership of documents — and the contents of
documents — in a systematic effort to hide its dealings from the people. The only
reason to arrest a reporter with documents is to keep the information" away
from the public, because a reporter has no use for the documents except for
his stories.
My arrest signals a new step in the Government's ownership of the news,
of the information in official documents. It is chilling to think that the Admin-
istration had this utter contempt for the Constitution and for reporters who
try to tell the public about the frequent failings of government.
Yet even more chilling is the fact that so few in the press itself (but, God,
how welcome those few are) have spoken up about my arrest. If the press will
not defend itself, can there be any hope at all?
Mr. Whitten. This goes right to the heart of whether Mr. Adams
was taking those documents down there with me or whether he was
going to go to my office and paper the walls with them. Points one
and two: On February 28 — ^the date is important — ]Mr. Gray told you
that ''we have checked with everyone at the Bureau of Indian Affairs
that we could check with, and not one of them said that they had any
such appointment with Mr. Adams." Both elements of this statement
are false. On February 2, 1973, 26 days before his testimony, the Wash-
ington Post reported that a House investigator at the BIA, Dennis
Creedon, had an appointment with Adams at 10 a.m. the morning
of our arrest (which took place at about 10:15 a.m.). The Post says,
"Creedon's boss C. R. Anderson, director of the (House Appropria-
tions) Committee's surveys and investigative staff, confirmed yester-
day that ]Mr. Adams had a 10 a.m. appointment with Creedon at the
Bureau of Indian Aff'airs Building. The House committee is using a
third-floor office at the BIA * * *
I submit the Post article for the record, if I may.
Senator Hart. It will be received.
[The Washington Post article referred to follows :]
[From the Washington Post, Feb. 2, 1973]
Indian Explains Actions
bia material was sent fob him to return
(By Donald P. Baker)
Indian leader Hank Adams said yesterday that the stolen government docu-
ments that he and reporter Leslie H. "^Miitten were arrested with Wednesday
morning were to be returned to the FBI later that day.
Adan^s said Special Agent Dennis P. Hyten had accepted other materials
that had been stolen from the Bureau of Indian Affairs building last November,
and had given Adams a signed receipt for them.
An FBI spokesman confirmed that agents routinely sign receipts for mate-
rial they pick up, but would not comment on whether Hyten had ever signed
such a receipt for Adams.
Adams contends that he was merely acting as a go-between for persons who
had mailed the documents to him so that they could be returned to the
goveiTiment.
484
He said that he gave Hyten paintings and office equipment "valued at several
thousand dollars" at a meeting in Adams' fifth-floor efficiency apartment at
1464 Rhode Island Ave. NW on Dec. 11.
Adams yesterday gave to his attorney, L. Graeme Bell, of the Native Amer-
ican Rights Fund, a receipt bearing Hyten's name, and listing "items received
from Hank Adams."
Bell said the signatures on the receipt, on a search warrant issued Tuesday
for Adams' apartment, and on the criminal complaint signed that same day,
"match perfectly."
The receipt indicates Adams turned over three drawings by R. C. Gorman.
a Navajo artist, and a portable dictaphone and accessories for dictaphones and
typewriters.
During the looting of the BIA building, hundreds of original paintings and
thousands of dollars worth of office equipment were stolen, along with govern-
ment documents.
On "one or two" occasions since then, Adams said, he had mailed BIA mate-
rial to Hyten, at the field office in the old Post Office Building.
The three boxes of documents that the FBI confiscated Wednesday were
to be shown to an investigator for the House Appropriations Committee, Adams
said, and then turned over to Hyten.
The name of Hyten and the telephone number of the Washington field office,
to which Hyten is assigned, were written across the top of the boxes, according
to Adams and Whitten.
Adams said he first wanted to show the documents to Dennis Creedon, an
investigator for the Committee, to show "our good faith in returning the
documents."
Creedon's boss, C. R. Anderson, director of the Committee's surveys and
investigative staff, confirmed yesterday that Adams had a 10 a.m. appointment
with Creedon at the Bureau of Indian Affairs Building.
The House Committee is using a third -floor office at the BIA from which
it is investigating complaints by various Indian spokesmen that the federal
agency has not served the best interests of America's native people.
Acting on infonnation the FBI said was supplied by an undercover agent,
Adams and Whitten were arrested at about 10 :15 a.m. outside Adams' apartment.
The two men said they had carried two of the three heavy boxes to Whitten's
yellow Vega that was parked on the street when they were arrested. Whitten is
an investigative reporter for columnist Jack Anderson.
The two men, and Anita Collins, news editor for the American Indian Move-
ment (AIM), were charged with illegally receiving stolen government docu-
ments. The charge is a felony punishable by up to a year in jail and a fine
of $10,000.
All three have been released on personal recognizance pending a preliminary
hearing set for Feb. 15 to determine whether there is probable cause to hold them
for grand jury action.
Two other persons arrested Wednesday in Adams' apartment were Daniel
Pigeon, 22, of Wittenberg, Wis., and Alison Grace Cerri, 20, of 9316 Piney Branch
Pkwy., Silver Spring.
Pigeon and Miss Cerri were released later Wednesday, and the U.S. attorney's
office said no charges would be placed against them. Adams said he had learned
that Pigeon and Miss Cerri have been subpoenaed to ajipear before a federal
grand jury this morning.
Adams and Miss Collins say the arrest was set up by a Pueblo-Apache they
knew as Johnny Arriano who revealed himself to Miss Collins at the time of her
arrest as an officer of the metropolitan police department.
In an affidavit for a warrant to search Adams' apartment, in which Arriano
is referred to as "the source," the undercover policeman said that Adams gave
instructions to bring the documents to his apartment "so they could go through
them to determine which would be given to Anderson."
En route to the bus terminal, according to the sworn statement of the source,
"Collins told the source that, if caught, they were to say they were just picking
up the documents to turn these over to the police."
Adams and Miss Collins agree that "Johnny" picked up the cartons about 2 p.m.
Tuesday at the Greyhound express office, 914 I St. NW.. and delivered them to
the apartment, but they say there was no conversation about turning them over
to Whitten.
485
The reporter was called at his home in Silver Spring about 8 :30 a.m. Wednes-
day, Adams said, and told that the documents would be returned and 'there's
nothing (newsworthy) in them." Adams said.
Whitten said he offered to accompany Adams to the BIA and offered the use
of his auto, in exchange for an exclusive stoiT on the return of the documents.
He said he momentarily considered what might happen if they were stopped by
police, but "thought we were clean as a whistle because we were taking them
back."
Before leaving the apartment, Adams and Whitten said they wrote Hyten's
name and telephone number on the boxes.
Once outside, Whitten said he was arrested by two FBI agents "who called me
by name." The reporter said the FBI might have known him on sight because
of previous publication of stories gleaned from stolen BIA papers, or by checking
the license plates on his car, or via a tap of Adams' telephone.
Adams suggested that the agents knew when to stake out the apartment "be-
cause Johnny was supposed to pick me up at 10 a.m. and take me to the BIA."
Instead, the undercover agent went to Miss Collins' house at 1747 Lanier PI NW,
and arrested her.
Mr. Whitten. I was present in the room when Adams, that same
morning, called Mr. Creedon to tell him that he was going to be late,
but was "on the way." Mr. C. R. Anderson confirmed to me that Mr.
Creedon, who I am told is a brave, honorable man and will testify
honestly, has told him that Mr. Adams indeed did call him about 30
minutes before the arrest (about 9:45 a.m.) and said he was "on the
way." We printed a report of this in our column on February 12, 1973,
16 days before Mr. Gray testified. I submit this column as sent out by
the United Feature Syndicate to our subscribers.
[The document referred to follows:]
[From the United Feature Syndicate, Feb. 12, 1973]
Washington Mekry-Go-Round — Documenting a Feame
(By Jack Anderson)
Washington. — Press spokesman Ron Ziegler has described as "wrong, wrong,
wrong," our report that the White House has instructed the Justice Department
to "nail" us.
We will be happy, if Ziegler is wrong, to accept President Nixon's apology for
.iailing Les Whitten. It remains a fact, meanwhile, that Whitten was arrested
"and his notes ripped out of his hand while he was covering a story for this
column. We also have evidence that his arrest was a setup.
He was charged with possessing stolen documents and converting them to his
own "use and gain." But here's the real shocker. The FBI knew the charges were
false before its agents pounced on him. Here are the facts, which we can now
document :
For weeks, Indian leader Hank Adams had been trying to arrange the return
of the documents that the Indians had taken from government files. He had
managed to secure a few papers and other stolen items, which he turned over to
the FBI Agent Dennis Hyten signed a receipt for them on December 11.
Yet after" the January 31 FBI raid on Adams' apartment, Hyten signed the
criminal complaint, charging him with possessing stolen documents. Our FBI
informants say the FBI was really laying for us and timed the raid to catch
Whitten in the net.
TV FILM TELLS ALL
Adams' role as the negotiator, merely trying to return the stolen documents
to the 'government, was well known. The respected Indian writer Vine Delona,
author of "We Talk, You Listen," and "Custer Died for Your Sins" told us all
the Indians involved in the theft knew Adams wanted to return everything.
There is pictorial evidence that the FBI's undercover man, John Arellano,
knew it too For an unshown ABC-TV film depicts Arellano, in his Indian pose,
sitting right there when Adams announced the documents would be returned "m
a short period of time."
486
An ABC film crew for the "Reasoner Report" set up their camera in Adams'
apartment not far from the White House on January 18. The producer, Aram
Boyajian, told us a number of Indians are shown clearly in the film. Among
them is none other than the FBI informer, John Arellano, who was listening as
Adams spoke.
Boyajian read us Adams' exact words from the transcript: "We have some
information on the nature of the documents that were taken and know that these
documents also will be returned in a short period of time. And then the govern-
ment will continue to lie. They'll say, you know, they weren't really returned or
some were still missing."
INDIANS REMEMBER
The incident is also recalled by two prominent Indian journalists, Richard
LaCourse and Tom Cook, who were present. "Johnny (the FBI undercover man)
was only four feet from Hank when he was talking about getting the things
back," said LaCourse. Cook also recalled Adams' words.
This evidence of the FBI's duplicity is supported by massive additional docu-
mentation about Adams' innocent role as the middle man trying to persuade his
more militant Indian colleagues to give back the stolen papers. From the White
House on down, Adams spoke to government officials about retrieving and return-
ing documents. Here are just a few of the witnesses who are available :
A few weeks after the documents were taken last November, Los Angeles
Times reporter Paul Houston spoke with Adams. Houston remembers that
Adams gave him a large manila enveloi>e to mail. Houston recalls clearly that
it was addressed to the FBI with Adams' return address. The FBI knew, ob-
viously, that the enclosed documents came from Adams.
A New York Times story, featured prominently, reported that Adams told a
press conference on December 8 that the Indian papers woiild be returned "as
fast as is humanly possible," after they had been copied for the edification of
the tribes.
By January 11, Adams had dropped the idea of waiting for the documents
to be copied. He told a National Press Club conference, as also reported by the
New York Times, that he "would personally endeavor to obtain and return" the
stolen documents. He set an outside target date of February 10.
On January 24, the communications director of the Bureau of Indian Affairs,
Tom Oxendine, wondering whether to start reconstructing certain BIA files,
asked Adams whether he still hoped to get the documents back by mid-February.
Adams, as quoted by Oxendine, said : "It's in the process of happening."
On .January 29, Adams personally informed Jane Wales of the Congressional
Quarterly that he hoped to have the documents back at least by Fel)ruary 10.
She published the tip in CQ's highly-respected "News Features" report for
editors two days later.
On January 31, even as CQ was informing editors of the imminence of the
paper.s' return, Adams had a 10 a.m. appointment at BIA with Dennis Creedon,
an investigator for the House Appropriations Subcommittee. Adams planned
to turn over the documents to Creedon, though he did not inform Creedon of
his plans. Thirty minutes before the arrest, Adams called Creedon to say he
was "on the way."
FBI KNEW TRUTH
Certainly, the FBI agents, who had been scurrying all over the country in a
futile search for the Indian documents, read the press accounts and their own
informer's reports on Adams' activities. They knew Adams was trying to collect
the stolen documents from Indians around the country and return them to the
government. Yet the FBI arrested the innocent negotiator, Hank Adams, after
the first large stash of stolen documents reached him.
Their real object, of course, was to nail Whitten, who had persuaded Adams
to let him witness the return of the documents as a reporter. WTaitten, of course,
had no part in stealing the documents and at no time possessed them.
Then what was his crime? He was enterprising enough to track down the
documents that the embarrassed FBI couldn't find. He extracted the news from
several documents and wrote the saga of the Broken Treaties Papers for our
column.
Our stories told how the Nixon Administration, like those that preceded it,
had cheated and neglected the Indians. We reported that the Indians wrong-
fully had stripped government files. But we also laid out evidence from the
487
papers that the government had helped white exploiters to steal the Indians'
water rights, mining claims and other resources.
Whitten is guilty only of embarrassing the Nixon Administration. The White
House, apparently, would like to make this a crime.
(Copyright, 1973, by United Feature Syndicate, Inc.) 8DH2730
Mr. Whitten. Mr. Adams, to be sure, did not tell Mr. Creedon lie
would have the documents, but the appointment was firm as you can
see from the above. Mr. C. E. Anderson, a frank, articulate man, and
Mr. Creedon can, and I suspect will, confirm the above to the com-
mittee if it asks them. Mr. Gray, in these two statements, has left a
stain on me, Adams, and this committee's record which I liope the
committee will ask liim to wipe oil.
And now, I have an insert in my testimony which is made only be-
cause I ascertained it this morning, and it goes in right here. ]Mr.
Chairman, I have only learned this morning of a grave untruth told
to this committee by Mr. Gray. Mr. Gray, as I noted above, swore under
oath, "We have checked with everyone at the Bureau of Indian Affairs
that we could check with, and not one of them said that they had any
such appointment with Mr. Adams."
This morning I was able to speak directly with Mr. Creedon with
the peiTQission of Mr. C. E. Anderson, who is the regular spokesman
for their office.
Despite what Mr. Gray swore — that "not one'" had confirmed Mr.
Adams' crucial appointment — Mr. Creedon told me that two of jMr.
Gray's agents spoke with him the day after our arrest. Mr. Creedon
tokl me that lie forthrightly confirmed to the FBI agents that Mr.
Adams indeed had an appointment with him at the BIA at 10 a.m.
on the morning of the arrest.
This, of course, flatly contradicts what Mr. Gray told you under oath.
Moreover, Mr. Creedon told me — though he did not tell the FBI
this detail — that he had cleared Adams through the security guard at
BIA for the appointment. This, of course, should show up on the BIA's
security records. Didn't the FBI make this fundamental check ? Surely,
the security records and security personnel at BIA were among "every-
one at the Bureau of Indian Affairs that we could check with."
Finally, at 2 p.m. on the day of the arrest, Creedon told me, the
guard came up and said that if he was still expecting Hank Adams,
he wouldn't be showing up because the guard had heard on the radio
that Adams had been arrested.
Mr. Chairman, I believe that this false statement to you by JMr.
Gray under oath cries out for clarification.
Points 3 and -i : Mr. Gray says his information is that the three car-
tons of documents "were initially going to be delivered at Xortli Caro-
lina to representatives of this column for a sum of money." Both parts
are again totally false. There was never any plan for the three cartons
to be delivered to us in Xorth Carolina, nor would we or did we pay or
offer to pay for any of the documents. The documents came froni South
Dakota, l' understand, and we never oft'ered to spend anAi:hing but
freight charges on them and that only if Mr. Adams was going to have
to dip into his own pocket. Mv. Adams refused, in any case. Indeed, we
have never given Mr. Adams anything and never spent anything, to
my knowledge, on this story for anything but meals, motels, and some
ordinary travel and reporting expenses.
488
Point 5 : At another point, Mr. Gray says "the transfer of money
was to be made," according to his information. This statement is false
as exphiined above.
Points 6 and 7: Mr. Gray says his information was that "Anita
Collins and Hank Adams had been conferring with Jack Anderson
to bny documents stolen from the Bureau of Indian Affairs." This
is wildly false, as Jack has pointed out. I had never known he had
ever talked with Anita and I know he had not talked with them prior
to the arrest. I think the first time that it could have been was prob-
ably at the court when the thing was dismissed or when we were
testifying.
^Moreover, both jSIiss Collins and Mr. Adams have confirmed to us
that they never said anything about selling documents to us in any
conversation with the FBI informant, John Arellano. Testimony by
]Mr. Adams. ]Miss Collins, and ]Mr. Arellano would seem to be war-
ranted to see how Mr. Gray came to base his case on these false
statements.
Point S : iNIr. Gray initially said the documents were kept in Mr.
Adams' home "which I believe was a Holiday Inn." This is false.
The FBI's own complaint says the documents were at 1464 Rhode
Island Avenue NW., an apartment house. That was the complaint
sworn out against us. The Holiday Inn is at 1501 Rhode Island Avenue
NW. Mr. Gray later caught his error, I understand. His initial state-
me]it, however, is evidence of his willingness to guess before the com-
mittee under oath, instead of knowing.
0)ie point where ]Mr. Gray's omissions badly misled the committee
is also worth noting. ]Mr. Gray says his agents spoke with a BIA
official named Tom Oxendine. ^Ir. (jrray testified that Mr. Oxendine
told tiie agents he (Oxendine) had seen Mr. Adams in passing with
rcirard to the documents and that Adams told Oxendine, "Maybe they
will be returned, maybe they won't. I don't loiow." I challenge the
accuracy of Mr. Gray's account. AVliat he failed to tell the committee
was that on February 3, 1973, the Washington Star-News reported :
Tom Oxendine, the director of the Bureau's oflSce of comnnmications, said he
had a brief conversation with Adams on January 24 at the BIA building. At that
time Adams indicated to him that plans to return the material, taken from BIA
during the Trail of Broken Treaties protest in November, were being carried out,
Oxendine said.
I submit the Star-News story for the record.
[The news story referred to follows:]
[From the Washington Star, Feb. 3, 1973]
BIA Official Says Adams Promised To Return Papers
(By Fred Barnes)
An official of the Bureau of Indian Affairs says that he was told by Hank
Adams, a militant Indian leader, that documents and artifacts stolen from the
bureau would be returned by mid-February.
Tom Oxendine, the director of the bureau's office of communications, said he
had a brief conversation with Adams on .Tan. 24 at the BIA building.
At that time, xVdams indicated to him that plans to return the material, taken
from BIA during the Trail of Broken Treaties protest in November, were being
carried out, Oxendine said.
Adams has served as a principal negotiator with the government for the
Indians who seized the BIA building during the protest.
489
But he, Anita Collius and Leslie H. Wliitten Jr., an investigative reporter for
columnist Jack Anderson, were arrested Wednesday and charged with possession
of government property stolen from the bureau.
Police seized three boxes of material in the arrest. Adams contends that he
was taking the material back to BIA and Whitten said he was along to get an
exclusive story on the event.
In a television appearance yesterday, Whitten cited the conversation between
Adams and Oxendine as evidence that BIA officials knew that Adams was in-
volved in attempting to return material stolen from the bureau.
There were these other developments in the case yesterday :
A government investigator confirmed that Adams was scheduled to meet wilh
him at the BIA building on the morning of the arrest. Adams said he was on his
way to hand over the stolen material to the investigator.
Whitten said he v>all cite the 1st Amendment's guarantee of freedom of the
press in seeking to have the charge against him dismissed at a preliminary
hearing on Feb. 15.
Anderson said that he will seek to have the FBI agent who arrested Adams
and Whitten ousted from his job.
Anderson claimed that the agent. Dennis Hyten, knew that the material in
the possession of Adams and Whitten was on its way back to BIA, since an
undercover officer was informing the FBI of Adams' moves.
If Hyten had thought the material was going elsewhere, Anderson said, he
would have followed Adams and Whitten to find out the destination rather
than immediately arresting them.
Anderson also said that the arrests will dissuade other Indians from return-
ing items stolen from BIA. "No one is going to return any documents novr," he
said. "They'll be afraid."
Mr. Whittex. Further on this, Oxendine, whom I liave known for
some time, told me that Adams had advised him on tlie return of the
documents that "It's in the process of happening." This is a far cry
from "I don't know." We used Oxendine's quote to us in our above-
mentioned cohimn of February 12. It is also in my notes and I quoted
it on the channel 5 "Panorama Show" within minutes after Mr. Oxen-
dine said it. Mr. Gray's quote, therefore, simply does not ring true and
I suggest that Mr. Oxendine, Mr. Fred Barnes, the higlily respected
Star-News reporter, and ]Mr. Gray be invited b}' the committee to
straighten out this misleading statement by Mr. Gray. The matter
goes directly to the intent of Mr. Adams to return the papers. I won-
der if j\Ir. Gray can even find that quote of his in his own FBI reports.
In his testimony to you, Mr. Gray also failed to tell 3-ou of other
evidence both in his own files and in public print that show Mr. Adams'
intent to help turn in thousands of pounds of documents.
This evidence is very important because it shows that Mr. Adams
was the accepted conduit by both the Indians and the Government for
getting back the papers. ]Mr. Adams' puri)ose, as he has described it to
me, was to get back the documents as an act of good faith so that he
could recommence negotiations he had been having with the A^liite
House on the Indians' demands.
The evidence also goes to the heart of Mr. Gray's judgment. Clearly,
his arrest of Adams blocked or delayed the return of these thousands
of pounds of documents sought and needed by the BIA. Mr. Gray's
arrest of Adams was not a precipitate act. He has told you that he
personally was aware of the documents question as early as January 24,
1973, a week before the arrest. Perhaps he knew from the newspapers
of the general problem much sooner. Yet, he chose to ignore the evi-
dence listed below and to move on Adams with disastrous results for
the documents' return, and with a setback to his credibility as an
investigator since the case was thrown out.
490
If I may I will run very rapidly through these 10 points. Cumu-
latively they are important :
Item 1 : ()n November 22, 1972, Adams, who had been the negotiator
with the White House for the Caravan of Broken Treaties, wrote Pres-
ident Nixon, telling him that he (Adams) had "acted through all
forms available to me for the protection of such materials"- — meaning
the documents and other items taken from the building — "during all
the days of this month," according to the Washington Post of Febru-
ary 12, 1973. 1 submit that article also for the record.
[The news story referred to follows:]
[From the Washington Post, Feb. 12, 1973]
Two Asked To Talk by Jury
INDIAN ACTIVIST, WRITER CALLED IN BIA PROBE
(By Donald Baker)
A federal grand jury here, investigating the theft of documents from the
Bureau of Indian Affairs, has asked reporter Leslie H. Whitten, Jr. and Indian
activist Henry L. (Hank) Adams to testify before it Wednesday.
Whitten, Adams and Anita Collins are scheduled to appear at a preliminary
hearing in U.S. District Court on Thursday on charges of possessing stolen
government documents.
They were arrested Jan. 31, while carrying cartons of items that had been
stolen from the Bureau of Indian Affairs during the occupation of that govern-
ment building last Nov. 2 to 8.
The grand jury heard testimony Friday from two young Indians who have
been granted immunity from prosecution by tlie government.
Adams, an Assinboine-Sioux from Frank's Landing, Wash., has been the
chief negotiator between the federal government and the coalition of Indian
organizations that came here last November to protest federal treatment of
Indians. The Trail of Broken Treaties Caravan erupted into a violent demon-
stration and documents, artifacts and equipment were stolen at the end of a
six-day siege of the BIA building.
Adams contended at the time of their arrest that he was attempting to carry
out a promise to return the documents and that Whitten was along to cover the
story. Whitten is an investigative reporter for syndicated columnist Jack
Anderson.
The two men were arrested as they carried two cartons of government docu-
ments from Adams' apartment, at 1464 Rhode Island Ave. NW, to Whitten's
car. A third carton was recovered in the building lobby. Miss Collins was not
with them, but she also was charged.
The two Indians w^ho appeared before the grand jury on Friday, Allison
Cerri and Daniel J. Pigeon, earlier had invoked the Fifth Amendment and
refused to testify. They were asleep in Adams' apartment when Adams and
Whitten were arrested.
FBI agents also arrested them, but the charges were dropped later that
same day.
Miss Cerri, who also is known by the Indian name Puma Jackson, said that
after testifying she was convinced that prosecutors "apparently realize they
can't pin Hank with the documents, because of all his public statements that
he planned to return them, so now they want to get him for something else."
JURY ASKS INDIAN, REPORTER TO TESTIFY
Pigeon said the grand jury questioned him about 30 minutes, "mostly about
Hank. Anita, and Les Whitten."
Both said the prosecutors directed questions to them about Whitten, columnist
Anderson and a typewriter that FBI agents seized in a search of Adams' apart-
ment following the arrests.
"They asked me if I knew Whitten on sight," Pigeon said. "I said that I
didn't even know his name, or that he was a reporter for Jack Anderson. Of
course, I do now."
491
Pigeon said no questions were asked about undercover policeman John G.
Arellano, who posed as an Apache Indian for four months and provided the FBI
with information that led to the arrests. "But I mentioned Johnny in some of
my answers," Pigeon said.
He said he testified that Adams at one time told him he was going to return
some documents to the BIA building, but that he was unaware that the cartons
were being transported on Jan. 31 "until after I was arrested."
Pigeon said he was asked to describe the confiscated typewriter, and also
testified that he had seen Adams use it at different times over a period of weeks.
( Adams contends the typewriter was given to him several years ago in Olympia,
Wash.)
Miss Cerri said she testified that she first saw the three cartons of documents
when she and Pigeon returned from a shopping trip the afternoon before the
arrests.
"They asked me if I had ever seen Les Whitten in Hank's apartment (to which
she answered no) and if Jack Anderson's name was ever mentioned" Miss
Cerri said.
"I told them that was really absurd (asking about Anderson)," she said,
"because a name like that is going to be mentioned."
She said she had asked FBI agents the morning of their arrest, "Who was
that guy (Whitten) who got busted with our group."
Whitten, who has supplied Anderson with columns about alleged injustices
to Indians by the government, said he had offered the use of his car to Adams
in exchange for an exclusive story on the return of the documents.
"I even had a lead written in my head," Whitten said yesterday. "It would
go something like 'Hank Adams, derided by the White House for his efforts,
has quietly returned the largest stash of stolen documents to the FBI.' It would
have been a neat trick, what with the FBI looking all over the country for
the stuff."
Whitten said that "the only reason to arrest a reporter with documents is to
keep the information away from the public, because a reporter has no use for
the documents except for his stories."
WTiitten said he could not say whether he would appear before the grand jury
because his attorney has told him not to discuss the matter. \Miitten and Adams
were not subpoenaed but were asked to appear by letter.
Miss Collins has said that she and Arellano picked up the cartons at the bus
station the day before her arrest and took them to Adams' apartment. Adams
.said the documents had been sent to him from South Dakota, for return to
the BIA.
Adams and Miss Collins contend that Arellano knew they planned to return
the documents to the government and that the FBI moved in before they could
accomplish it.
Shortly before their arrest, Adams and Whitten said they wrote on the cartons
the name and telephone of Dennis Hyten, a special agent assigned to the Wash-
ington field office of the FBI. Adams said he previously had returned other BIA
material to Hyten, at a meeting in his apartment, and even got a receipt from
Hyten listing the recovered items.
Adams said the plan on the day of the arrest was to transport the cartons to
the BIA building and show them to an investigator for the House Appropriations
Committee and then call agent Hyten.
Adams frequently had been quoted as saying he was working for the return
of the documents. Adams contended the thefts had obscured the valid complaints
that had brought the Indians to Washington.
In an interview filmed by an ABC television crew in Adams' apartment on
.Tan. IS, undercover agent Arellano sat four feet from Adams and listened as
Adams promised that the documents would be returned "in a short period of
time," according to ABC staff members.
The interview was taped for a "The Harry Reasoner Report" but has not been
shown. Producer Aram Boyajian said Arellano can be seen in the film.
Boyajian said the transcript shows Adams saying: "We have some information
on the nature of documents that were taken and know that these documents will
be returned in a short period of time. And then the government will continue to
lie. They'll say, you know, they weren't returned or some were still missing."
After "the White House officially reject efl the 20 propopals of the trail of Broken
Treaties, in a note to Adams on Jan. 10, Adams revealed that he already had
returned "several thousand dollars worth of documents and paintings." He then
492
set a date of Feb. 10 for return of the other property, allowing 30 days to gather
them from across the U.S.
Bradley H. Patterson, Jr., executive assistant to Leonard Garment, the presi-
dential assistant who was cochairman of a task force studying Indian complaints,
recalled yesterday that he told Adams : '"Hank, if you know where any of these
documents and other things are, or if you have any yourself, I encourage you to
return them to the Washington field office of the FBI."
There is other evidence that government officials suggested that documents be
returned in the manner Adams said he was attempting to do.
On Nov. 14, a BIA spokesman said he had told several anonymous callers that
stolen items could be returned to the FBI.
On Nov. 22, Adams wrote to President Nixon to complain about the failure of
the government to clean up the BIA building. Adams noted that he had '"acted
through all forms available to me for the protection of such materials during
all the days of this month."
After the White House officially rejected the 20 proposals of the Trail of Broken
Treaties, in a note to Adams on .Tan. 10, Adnms revealed that he already hnd
returned "several thousand dollars worth of documents and paintings." He
then set a date of Feb. 10 for return of the other property, allowing 30 days to
gather them from across the U.S.
j\Ir. WiiittejSt. Item 2 : Sometime in November, or at least early
December, accoidino- to a Los Angeles Times story of Febi-uary 2,
1973, which I submit, Los Angeles Times reporter Panl Houston
dropped a letter in the mailbox for Adams addressed to the FBI
with Adams' retui'ii address on it. Adams tells me it contained in-
formation for tlie FBI aimed toward the retnrii of documents to the
Government. I have talked with Paul Houston, he can't remember
the FBI agent on it but Adams recalls it as Dennis Hyten.
[The Los Angeles Times news storj^ referred to follows :]
FBI "Double-Crossed" In'dian With Documexts, Axderson Aide Says
(By Jack Nelson)
Washington — Investigative reporter Les Whitten dealt with 20 to 30 dif-
ferent Indians in four states and here as he inspected dnoumentf that were stolen
from the Bureau of Indian Affairs in November, he said in an interview Thursday.
His reports led to eight Jack Anderson columns that severely criticized the
BIA and accused the Nixon Administration of violating Indians' rights and favor-
ing special interests at the expense of Indians. The columns also ridiculed the
FBI and Washington police for permitting "the biggest document heist in
history."
FBI agents Wednesday arrested Whitten and two Indians — Hank Adams and
Anita Collins — and charged them with receiving and possessing government
property.
Whitten said that he and Adams were preparing to return three boxes of stolen
documents to the BIA when they were arrested. The reporter said that the FBI
had "doublecrossed" Adams because it had been working with him in recovering
documents and art treasures that were stolen when a group of militant Indians
ended a six-day take over of BIA offices.
BETUBN ADDRESS
(About three weeks after the siege Adams permitted Times reporter Paul
Houston to examine several BIA documents. Houston later mailed an envelope
for Adams addressed to an agent at FBI headquarters and containing Adams'
return address.)
The case against Whitten and tlie two Indians apparently is based largel.v on
the testimony of an undercover Washin.srton policeman who infiltrated the mili-
tant group as its members headed for V\'ashingLon to occupy the BIA building.
The government complaint quotes the informant as saying that he learned
Tuesday Whitten would pick up the stolen government documents for his own use
Wednesday. Whitten said he and Adams were taking the documents from Adams'
apartment to the BIA when they were arrested.
"It was a double-cross of Adams to get him and me," Whitten said.
493
"I bad even written tlie name of an agent investigating tlie case on the boxes
so tbe documents would eventually go to bim. He was the same agent who signed
tbe complaint against us."
Wbitten said tbat tbe arrest of Wbitten was part of a deliberate attempt by
tbe Wbite House to bait all criticism of government policies.
He added tbat tbe Nixon Administration bad "cast aside" tbe constitutional
rigbt of tbe public to learn what tbe government is doing by misusing a criminal
statute intended to apprebend "fences" wlio receive stolen goods.
One of tbe Anderson columns told bow Wbitten flew to Pboenix, Ariz., for bis
first meeting witb tbe militant Indians.
"At tbe airport, Indian security men one jump abead of the FBI told bim to
wait on a corner away from tbe terminal building," tbe column continued. "They
bustled bim by a devious route to a motel where some of the Indian leaders were
assembled."
The column said that meetings vrere arranged in a bowling alley, a coffee
house and other places and tbat Wbitten finally was instructed to fly to another
city hundreds of miles away where he was locked in a room with a guard outside
while he inspected some of tbe stolen documents.
Another cohuuu said that Washington police "rushed a 40-car Indian caravan
through the city" after tbe BIA takeover, unaware "that they were unwitting
accomplices to tbe biggest document heist in history."
Anderson wrote that the document theft took place "under the noses of tbe
FBI" and that It was "unlikely federal bloodhounds will ever be able to track
down all the papers."
'didn't bother'
"This time I didn't even bother," he said, "because it was so innocent. I
knew we were going straight to the Bureau of Indian Affairs and I thought I
would have an exclusive story. I was already working out tbe lead in my mind,
something like : 'Hank Adams, much derided by tbe White House for his part
in the broken treaties paper situation, had quietly returned the largest stash
of stolen dociuuents so far . . .' "
In anotlier development Thursday, Rep. Lloyd Meeds (D-Wash.), chairman
of tbe House Indian affairs subcommittee, invited Wbitten and Anderson to
testify before his subcommittee about the stolen docimients. He said the docu-
ments were vital to an understanding of past BIA activities.
Meeds also said : "I am extremely upset with tbe implied harassment and
intimidation of the press inherent in Mr. Whitten's arrest. But our main concern
is tbat the public be aware of the information in the papers before they are once
again locked away from public view."
* * * * * * *
Mr. "VViiiTTEN. Item 3: On December 9 the New York Times, re-
portino- a press conference bj' Adams, said, "Mr. Adams said that all
stolen documents would be returned to the bureau 'as fast as is human-
ly possible, after they have been copied and indexed and sent to the
individual tribes concerned, so they can educate themselves.' " I sub-
mit the article as evidence.
[The New York Times news story referred to follows:]
[From the New York Times, Dec. 9, 1972]
Lapse by Indian Bureau Is Charged
WASHINGTON, Dec. 8 — A leader of the militant Indians who seized the
Bureau of Indian Affairs headquarters here last month alleged today that docu-
ments taken from office files during the occupation showed that bureau officials
had helped a white man with a criminal record for fraud enter a business
partnership witb a tribe of South Dakota Sioux without checking on the man's
background.
The leader. Hank Adams, said at a news conference that analysis of tbe stolen
documents had shown tbat "a 62-year-old" man known to tbe Sisseton-Wahpeton
tribe as "John W. Cabot" had persuaded tribal leaders to seek Federal funds
to build a paint factory in which he and the Sioux tribe were to be virtually
equal partners.
According to Mr. Adams, the man, who has a record of arrests and convictions
for forgery, fraud and larceny reaching back to 1934, met here in April with
91-331—73 32
494
officials of the bureau aud the Interior Department to explain the project to
them. Mr. Adams said that "no questions were asked" about the man's back-
ground.
$25,000 LOAN EEPOETED
The officials, Mr. Adams said in the six-page analysis, "were satisfied simply
that the impressive spokesman had gained the confidence of the . . . tribal
leaders, and was willing to help them out."
The man, who has been adjudged criminally insane and spent time in a mental
institution as well as in state penitentiaries at Sing Sing and San Quentiu, was
said to have been directed to officials in the bureau's economic development
division by Wilma Victor, a special assistant to Secretary of the Interior
Rogers C. B. Morton.
Mr. Adams said the documents showed that a loan of $25,000 from the bureau's
revolving fund was made last December to the Lake Traverse Paint and Chem-
ical Corporation, from w^hich "Mr. Cabot," who has used at least 15 other aliases
in the past, would receive 49 per cent of any profits, with the rest going to
the tribe.
A spokesman for the bureau said that none of the officials named by Mr. Adams
as having been involved in making the loan could be reached for comment.
Miss Victor, told of Cabot's background, expressed surprise and explained
that she had "made arrangements for Mr. Cabot to meet with people" at the
bureau only because Moses Gill, the chairman of the Sisseton-Wahpeton tribe,
had asked her to do so.
"His [Cabot's] original contact was with the tribe, and whenever a tribe
wants us to look into the possibility of [such] dealings, the tribal chairmen
sometimes call me and ask where should we send these people," Miss Victor said.
Asked whether she had any suspicions about Cabot's credentials or motives,
she replied : "No, none at all. My, I am so sorry that's true. I sure hope the
tribe didn't lose out on this."
However, Mr. Gill, reached by telephone at his office in Sisseton, S. Dak.,
contradicted Miss Victor's account, saying he could not recall ever asking her
to assist Cabot. The only time the three of them had been together, Mr. Gill
said, was at a luncheon in Washington last June.
OPERATIONS SUSPENDED
"I did not request Wilma nothing," Mr. Gill repeated emphatically.
Mr. Gill conceded that developing the paint company, which was to have
trained 50 tribe members in management, chemistry and salesmanship, had been
Cabot's idea. But, he said, the operation had never really gotten "off the ground,"
employing only "seven or eight people" at most, and was now temporarily out of
oi>eration.
Before Cabot disappeared in August, Mr, Gill said, he had received no salary
but had worked on the strength of an informal agreement that he would receive
a 49 per cent share of the profits once the operation moved into the black.
Asked why Cabot had left in August, Mr. Gill said that word of his background
had reached the tribe at about that time. "I confronted Jack, I showed him the
whole thing, he denied it, but he said, 'If I fight it, nothing is going to be accom-
plished except the paint company is going to get hurt.' He handed iu his resig-
nation, and we accepted his resignation."
:!: * * * * * *
"This case involves a situation where a tribe is vulnerable to losing millions
of dollars and still winding up without jobs in a community wliich is economically
depressed, and yet no one's concerned with anything except protecting the ivputa-
tion of John Cabot."
Officials of the Sisseton-Wahpeton tribe would not say how much of the tribe's
money had gone into construction of the paint factory.
In response to another question, Mr. Adams said that all the stolen documents
would be returned to the bureau "as fast as is humanly possible, after they have
been copied and indexed and sent to the individual tribes concerned, so they can
educate themselves."
Mr. Whitten. Item 4: On December 11, in our first story on the
Broken Treaties Papers, we wrote tliat the Indians had given us a
message for President Nixon. In this cokmm, Jack, quoting the
Indians, said:
495
Tell the President that Indians do not want the documents any longer than it
takes to duplicate and index them so that every tribe in America can educate
itself to the double-dealing of the federal government and hud ways to forestall it.
I submit the full text of our column for tlie record.
[The document referred to follows :]
[From the Broken Treaties Papers, Dec. 11, 1972]
(By Jack Anderson)
WASHINGTON — The Broken Treaties Papers, which were smuggled out of
government files by wrathful Indians during their occupation of the Bureau of
Indian Affairs building, have been scattered in secret stashes across the United
States and Canada.
We have had access to them. We have also been given a message for President
Nixon. "Tell the President," we were asked, "that Indians do not want the
documents any longer than it takes to duplicate and index them so that every
tribe in America can educate itself to the double-dealing of the federal govern-
ment and find ways to forestall it."
We have inspected thousands upon thousands of documents, some almost brittle
with age, others fresh as today's headlines. They tell a shabby story.
Some documents describe multimillion-dollar land deals in South Dakota's
Black Hills. Others reveal how the White House played politics with Indian
rights.
There are also poignant papers, like the account of an Indian woman whose
foot was broken by the police but was left to spend the night in jail untended.
But above all, the documents indict the bureaucrats who have pretended to
help the Indians but have often exploited them instead. Indians whose forebears
fought the cavalry have been redviced to battling the bureaucrats. It has been a
tawdry, tedious war without glory.
Like the cavalry, the bureaucrats have remorselessly driven the Indians deeper
into their reservations. The stolen documents contain evidence that Indians have
been cheated out of their land, robbed of their water rights, deprived of their
fishing streams and hunting grounds.
GRIM STATISTICS
As in any war, the statistics are grim. Indian life expectancy is 47 years com-
pared with 71 for other Americans ; the Indian unemployment rate is 45 per cent
compared with 5.8 per cent for the nation at large : the average Indian family
struggles along on $4,000 a year, less than half the $9,867 median for the rest of
the country ; and finally, the Indian suicide rate is twice the national rate.
Ever since the Indians x-ansacked government files and carted off boxes full of
documents, several newsmen have tried to get a look at them. Some offered money
for the story ; we offered only our record for championing the downtrodden. The
Indians spurned the money and voted to show us the Broken Treaties Papers.
The FBI, meanwhile, has been searching up and down the country for the
stolen documents. Except for one small seizure in Oklahoma, however, the docu-
ments remain in Indian hands.
We learned they had been broken down into several caches and hidden in
diverse locations at the far ends of the United States and Canada. Some were
secreted in automobile trunks, in old phonograph cases, in obscure corners of
private homes. Others were stashed in remote hiding places on Indian reserva-
tions
My associate Les Whitten flew to Phoenix for the first tryst. At the airport,
Indian securitv men one jump aliead of the FBI told him to wait on a corner away
from the terminal huilding. They hustled him by a devious route to a motel where
some of the Indian leaders were assembled.
FURTIVE MEETINGS
The Indians wouldn't talk about the papers in the motel or even inside their
cai's for fear of FBI bugging. Furtive meetings were arranged, instead, at a
bowling alley, a coffee house and on a parking lot. ^ ^ ^ .,
Next dav, Whitten was instructed to fly to another city many hundreds of miles
away He 'was met by one of the leading Indian militants, who questioned him
closely At last, Whitten was given four documents and questioned again about
496
their meaning to find out what he knew about Indian matters. Then, for 12 hours,
he was deserted.
The following morning, many thousands of documents were delivered to him.
The door of his room was bolted and a tough Indian security man planted himself
in a chair pushed against the door. As Whitten waded through the papers, Indian
experts helped him with the unfamiliar tribes and names.
Except for protecting our sources and keeping the hiding places secret, we
have been placed under no restraint by the Indians. They have made no attempt
to tell us what to write.
In future columns, we will describe how the Indians pulled the greatest docu-
ment heist in history right under the noses of the FBI. We will also reveal,
in detail, the contents of the Broken Treaties Papers.
Footnote: The Indians, in their black hats with the beaded hatbands, looked
tough and grim. However, they not only turned out to be friendly but they
laughed easily. Once they left Whitten behind to work while they went out for
a beer. When Whitten jokingly complained, one Indian cracked : "You know how
whites go crazv when they drink firewater."
(Copyright, 1972, by UNITED Feature Syndicate, Inc.) 6JK12720
Mr. Whitten. Item Five: Also, on December 11, Adams returned
valuable property to the FBI. The FBI knew Adams was the conduit
for the materials as is evidenced by a receipt given Adams by FBI
agent Dennis Hyten, the very agent who later was to swear out the
complaint against us after our arrest. The report of this receipt is in
the aforementioned Washington Post article of FebruaiT 12, oiir
own February 12 column, and other papers. I sul^mit a copy of this
receipt from Special Agent Hyten of the Washington Field Office for
the record.
[The receipt referred to follows:]
3 drawings by R. C. Gorman ; IBM portable dictaphone and case and batteries ;
plastic container with .5 imi typewriter heads; plasMc container with 1 IBM
head : .3 IBM dictaphone belts ; 1 Sony foot switch ; 1 IBM foot switch.
Above items received from Hank Adams, 1464 Rhode Island Ave. NW, Wash-
ington, D.C., apt. 503.
Dennis P. Hyten,
Special Agent, FBI.
Aflarm the above. Hank Adams, December 11, 1972.
Mr. WiiiTTEX. Item Six : January 11, Adams had dropped the idea
of waiting on the copying for return of the documents. That is 20 days
before our arrest. On January 12, the Xew York Times, under a four
column head, large enough for many Government officials to read,
said "An Indian Leader Pledges Eeturn of U.S. Property." This story
details Adams' plan for getting the documents back to the Govern-
ment, with many explicit quotes. It is a vital piece of evidence and
I submit it for the record.
[The New York Times news story referred to follows:]
[From the New York Times, Jan. 12, 1973]
An Indian Leader Pledges Return of U.S. Property
Washington, Jan. 11. — ^The documents, paintings and other property taken
from the Bureau of Indian Affairs after its four-day occupation by Indians last
November will be returned by Feb. 10, a negotiator for the group said today.
Citing "a division in the philosophies and personalities" of members of the
coalition of tribes that made up the Trail of Broken Treaties caravan. Hank
Adams, the Indians' principal negotiator with the Government, said at a news
conference that he would personally endeavor to obtain and return the pilfered
property.
Mr. Adams, an Assinaboine from Puyallup, Wash., who is a lawyer, also said
he had received information that he and seven other caravan leaders would soon
497
be charged by the Government with criminal conspiracy to come to Washington,
trespass and destroy and steal Federal property. A spokesman for the Federal
Bureau of Investigation, which has recovered a small amount of stolen property,
refused to commenc on the possible arrests.
Caravan leaders have maintained that the Indian Bureau was seized by the
1,000 members of the caravan after attempts to obtain food, lodging for partici-
pants and interi-iews with key Government officials failed.
According to Mr. Adams, who said he had returned several thousand dollars
worth of documents and paintings, '"the intended uses of the documents weren't
fully effective."
•"AVe had planned to use them to educate our many tribes and to use them in
the news media to document Government impropriety," he said.
"But unfortunately, the announced study of the documents never took place,"
Ml-. Adams said. He said that poor communications and fear of Federal surveil-
lance had resulted in a situation that made it impossible to manage the docu-
ments.
He said the coalition had splintered and that there was a "great gap in the
cohesiveness and coordination of activities."
Mr. Adams said, however, that there was growing acceptance among Indian
nations of the list of 20 concerns forwarded to the White House during the
occupation of the bureau.
In a series of national, regional and state meetings of Indian tribes during
the last two months, officials from more than 150 tribes have endorsed the 20-point
proposal in principle and spirit, according to Mr. Adams.
On Tuesday, however, the White House rejected the proposals and criticized
the caravan for what officials described as the "wanton destruction" in the bureau
building and the theft of property.
"xiS vve now proceed to work and look ahead with the entire Indian com-
munity, we hope that the theft of its contents will be seen as the distracting and
divisive act that it was — an act which served only to impede the progress already
being achieved by the Administration and responsible Indian community," the
White House's written response said.
One of the primary requests made of the Government was for renewed treaty-
making authority and creation of a commission to review treaty commitments
and violations.
"To call for new treaties is to raise a false issue, unconstitutional in concept,
misleading to Indian people and diversionary from the real problems that do
need our combined energies," the White House statement said.
It was signed by Leonard Garment and Frank Carlucci, who took over negotia-
tions between the Government and the Indians after talks between Interior De-
partment officials reached an impasse.
Mr. Adams said response was virtually devoid of positive content and reflected
the hostile attitude that Federal agencies and officials have maintained against
independent and creative Indian thought, expressions and proposals.
Mr. Adams said a White House official had told him that the Federal Bureavi
of Investigation was concluding investigations that would allow it "to get as
many of you guys as we can."
Mr. Adams read from a Department of Interior memorandum about $65,000 in
new funds to bolster the security force at the Pine Ridge Indian reservation.
He said the agency had been encouraging and funding the expansion of security
forces on reservations to harass caravan members and prevent their holding
meetings with tribal members. The aiithor of the memo could not be reached for
comment.
Mr. Whittex. Item 7 : One of the most interesting- thinfjs that we
turned np in our investigation : On January 18, an ABC "Reasoner
Report" film crew set up at Adams' apartment. With Adams was the
FBI informant, Jo]m Arellano, -who has been quoted so trustingly by
Mr. Gray in his testimony to you. As the FBI undercover man listened,
Adams said, and I quote from the film's transcript, which I submit,
"We have som.e information on the nature of documents that were
taken and laiow" — my emphasis on "Imow"— "that these documents
also will be returned in a short, period of time. And then the Govern-
ment will continue to lie. They'll say, you know, they weren't returned
498
or some are still missing." The Eeasoner report was shown last week-
end and pointed out the FBI undercover man as Adams talked, desig-
nating him in the show.
[The document referred to follows :]
Reasonek Report, Saturday, March 3
Han-y Reasoiier — voice over.
Tills is a parley of the militants after the take over — talking of what they
have done and hoped to do. Hank Adams and Anita Collins were arrested by the
FBI and were charged with stealing documents.
Adams says he was falsely identified by a man posing as an Indian during the
take over: in reality a Washington undercover police agent — This man. John
Arellano. The FBI charge went to grand jury— but it refuired to make
indictments.
Hank Adams — w^e know, you know, that these things aren't true, because we
have some information on the nature of documents which were taken and know
that these documents also will be returned in a short iieriod of time, and then
the government will continue to lie . . . they'll say you know that they weren't
returned, or some are .still missing. They'll still use this as a device for explain-
ing their failures which were in force, evident even before there was a take over
of the BIA.
Mr. Whittex. Mr. Gray failed to tell you of this absolute evidence
of Adams' intent to return the documents and of the presence of
]Mr. Gray's FBI plant while Adams spoke of the return. Indeed. Mr.
Gray says the FBI had no knowledge Adams was returning docu-
ments. May I respectfully suggest that this ABC segment be shown
to the committee, to Mr. Gray, and to Mr. Arellano so the latter two
may be questioned as to whether Mr. Arellano informed the FBI
of this statement by :Mr. Adams. If Mr. Arellano did inform the
FBI, then ]\Ir. Gray arrested Mr. Adams with full knowledge Mr.
Adams was aiding the return of the papers. If Mr. Arellano did not
inform the FBI, then he is a slipshod undercover man and why has
INIr. Gray put so much faith in hirn that his agents arrested Mr. Adams,
INIiss Collins, and myself on Arellano's word ?
Item 8: On January 29, Adams personally informed Jane Wales
of Congressional Quarterly that he hoped *to have the documents
back— all the documents— by February 10. CQ published this infor-
mation on January 31, ironically, the day we were arrested. The CQ
item is submitted.
[The document referred to follows:]
[From the News Futures, Jan. 31, 1973]
V Indicates First Listing
SATURDAY, FEBRUARY 10
VThe documents, paintings and other property taken from the Bureau of
Indian Affairs after its four-day occupation by protesting Indians last November
wdll be returned by this date, according to the Survival of American Indians
Association. See CQ Weekly Report, p. 85; also 1972 CQ Almanac, p. 8^0; also
E.R.R. Report of Nov. 8, 1912.
Mr. Whittex. Item 9 : On January 29 or 30, Adams made tlte origi-
nal appointment with Mr. Creedon, according to ]Mr. C. R. Anderson.
That was 30 minutes before we were arrested and I outlined this item
earlier.
Item 10: Twenty-five or thirty minutes before his arrest, Adams
wrote on the boxes, with my help, the name ''Dennis H^'ten, "WFO-
499
FBI— meaning Washington Field Office— and Hyten's plione number.
He knew Hyten would be getting the documents from the BIA— Hyten
had been coordinating the return — ^where Adams and I were taking
them in my car. The man Adams had hoiked would help transport them
to the BIA was none other than the FBI's undercover man, John Arel-
lano. But he failed to show up. Mr. Gray neglected to tell you of the
lettering on the boxes.
Now, if I may, two quick areas of observation and then I am done.
By arresting Adams, as I say, I believe Mr. Gray effectively blocked
the return of the thousands of pounds of documents still outstanding.
Vine Deloria, Jr., the Indian author, has told me that Indians all
over America Imew Adams was trying to get the documents back as
a means of showing good faith so the White House talks could be
renewed.
My own problems with Mr. Gray aside, the arrest of Adams was
a colossal error in judg-ment by him. He arrested the one man who was
capable of getting the valuable documents back into Government
hands.
And finally. Senator Cook and Mr. Gray have cast doubt on my
sworii testimony to the grand jury and here that the docmiients were
going back to the BIA. To begin with, if the FBI had really wanted
the documents, they would have had their informant, Arellano, who
picked them up. drop them off at the FBI on the way back from the
bus station which is only a few blocks from the field office of the FBI.
Second, the FBI waited all night before pouncing on Adams, If you
accept Mr. Gray's view of Mr. Adams, how did the FBI know Mr.
Adams wasn't going to flush documents all night ?
Third, the FBI arrested me at Adams' apartment, an odd departure
from ordinary police procedures. Ordinarily they would have followed
me to where the documents were going so that the crucial element of
their charge — that I was converting the documents to my "own use"'—
would stand up. My belief is that the arrest was a harassment of Jack
Anderson. We have written columns with bite about the FBI and about
this and previous administrations. Moreover, the FBI had chased all
over the country for the documents and Hank Adams was within a few
blocks of making monkeys out of Mr. Gray and many of his agents by
getting the first big cache of documents across the country and back to
the Government right under the FBI's noses. The combination of
Adams and Anderson, I believe, proved too tempting a morsel for the
FBI to let a little thing like common sense and the first amendment
stand in its way.
After all, is it really imaginable that Hank Adams would try to sell
a batch of documents whose only value was for the tribes ; the three
cartons were full of old land decisions and the like ? Is it imaginable
that at 10 a.m. on a bright morning I would park — illegally — in front
of an apartment house at lith and Khode Island in a little Vega liateh-
back, a bright yellow-orange Vega which is practically wrap-around
glass, with the intent to steal big boxes of documents ? Wouldn't I be
pulled up in an alley instead of parked where a traffic policeman
writing me a ticket might have seen boxes with FBI written all over
the top ? Would we have written the name of the agent for whom the
documents were eventually destined— this same Hyten — on the top if
we planned to lug them to our Xerox machine at 16th and K and up
nine floors in a crowded elevator ?
500
I am foolish, but not that foolish.
Thank you for j^onr patience. I have laboriously outlined my case
because only by doing so could I show that it touches on Mr. Gray's
judgment, credibility and mostly on his abilities as the Nation's top
policeman.
Therefore, I, too, oppose Mr. Gray as Director of the FBI. But I
pray that if he is approved, he will become such a fair, nonpolitical,
hard working and proficient Director, despite my fears, that 3 years
from now I can voluntarily eat each page of the printed testimony in
a giistatoiy mea culpa I would gladly make.
Thank you very much, Mr. Chairman, for your courtesy.
Senator TuNNEY [presiding]. Senator Hruska.
Senator Hruska. I will defer to the Senator from Kentucky for
questioning.
Senator Cook. Thank you.
Let me check with you, ]\Ir. "\'\'liitten, first, because in going through
this, your testimony, there are some things that I don't quite
understand.
I thought that Mr. Arellano is a member of the T^letropolitan Police
Department, that he is not an FBI agent, that he is not on any payroll
of any Federal agency. Is that not true ?
Mr. Wkittex. I think if you will check my testimony, Senator Cook,
you will find that I did not say he was an FBI agent.
Senator Cook. Well, you call him an FBI informant.
Mr. Whitten. That is correct.
Senator Cook. It is my miderstanding the information he had was
given to the Metropolitan Police Department and then passed on to
Federal agents.
]\Ir. WiiiTTEX. You are correct. He is not an FBI agent but he is an
FBI informant.
Senator Cook. I think the inference in all of your testimony was
that he is an FBI informant and Mr. Gray relied on that information.
I think the inference is that Mr. Arellano is somehow or other asso-
ciated with the FBI, when, in fact, he is not.
Mr. Whitten. Senator Cook, it was Mr. Arellano's information, as
you suggest, that Mr. Gray, Acting Director of the FBI. did rely on
in my arrest.
Senator Cook. Are you sure it was ISIr. Gray, are you sure it wasn't
somebody else in the Federal Bureau of Investigation?
Mr. Whitten. Either way, sir, I vrould suggest it makes a connec-
tion between the FBI and Arellano.
Senator Cook. I wish to say that, somehow, the association that you
make, that an informant of the JNIetropolitan Police Department of
the city of Washington is connected with the FBI, is hard for any of
us on this committee to believe.
^Ir. Written. The ]Metropolitan Police Department did not arrest
me. Senator Cook.
Seiiator Cook. That is correct.
Now, Mr. Whitten if, in fact, you were delivering 150 pounds of
documents to INIr. Creedon, why did you put Mr. Hyten's name on the
boxes or why did IMr. Adams put IMr. Hyten's name on the boxes ? Is
this wliat we commonly refer to as a passthrough?
501
Mr. Whitten. I don't know what passthroiigli is. If you will ex-
plain it to me I will be glad to hear you.
Senator Cook. If the intention of JSIr. Adams, and you were in Mr.
Adams' apartment with him at that time, was to return these docu-
ments to Mr. Creedon, who, by the way, is not an employee of the BIA
but of the House Appropriations Subcommittee, why did you put Mr.
Hyten's name on them, wlio is in the FBI, when, in fact, there was no
intention of returning them to him ? Apparent!}^, from your testimony,
you were taking them to jNIr. Creedon, you weren't taking them to Mr.
Hyten, therefore, do you have any knowledge why Mr. Adams would
put ]\Ir. Hyten's name on them when in fact he was returning them to
jSIr. Creedon at an office that the House Appropriations Subcommittee
has at the BIA?
Mr. Written. Senator, you lost me about four questions ago.
Senator Cook. I didn't think so.
Mr. Whitten. If I could take them one at a time I would be very
pleased to answer them now. First, you were telling me about pass-
through.
Sen'ator Cook. Were you there when Mr. Adams put Mr. Hyten's
name on the boxes ?
Mr. WiiiTTEN. And I also wrote on one.
Senator Cook. Did you ?
]Mr. Whittex. Yes, sir.
Senator Cook. And yet you say you were going to return them to
Mr. Creedon.
Mr. Whitten. At the BIA ; yes, sir.
Senator Cook. What was the purpose of putting jMr. Hyten's name
on them when they were going to be returned to Mr. Creedon?
Mv. Wiiitten. As I said in my testimony a few minutes ago,^ as I
understand it, ]Mr. Hyten was coordinating tlie return of the docu-
ments. Mr. Adams wa's taking them back to' the BIA, I would assume
quite symbolically knowing that they would then be taken to tlie FBI,
to jNIr. Hyten who was coordinating them
Senator Cook. If all these documents
jMr. Wiiitten. Could I finish, sir ?
Senator Cook. Sure.
Mr. WniTTEN. They were, as I understand it, to be taken back to the
BIxA. where Mr. Hyten would most assuredly have been called and the
number itself was written on the top of the boxes, so that he could be
summoned. They came from the BIA, and INIr. Adams, who is a very
dedicated Assiniboine Sioux Indian leader, wanted them to go back to
BIA. ^. .
Senator Cook. If Mr. Creedon knew he was coordmatmg tne return
of all of these, and you just finished saving that you did this, I think
you said that Mr. Creedon was coordinating
Mr. Written. I think Mr. Hyten
Senator Cook. AVliy weren't they del i vered to Mr. Hyten ?
Mr. Written. Are you talking about Mr. Creedon or Mr. Hyten ?
The first name of each is "Dennis."
Senator Cook. I have no intention of usmg their first names.
Mr. Written. You confused Mr. Creedon and Mr. Hyten.
502
Senator Cook. I am not confusing tliem at all. I just don't get your
own testimony at all. I have prosecuted long enough so I don't confuse
them at all.
Mr. Whitten. I can believe that.
Senator Cook. You wrote on three boxes that contained 150 pounds
of documents, the name of Mr. Creedon — Mr. Hyten. [Laughter.]
On the basis of having written Mr. Hyten on those three boxes, why
was it your intention or why was it Mr. Adams' intention to deliver
them to the BIA?
Mr. Written. I believe I have explained that.
Senator Cook. 'Wliy don't you explain it to me again.
Mr. Whitten. Very well.
Senator Cook. If 1 have a box I wouldn't put on the box Senator
Hruska's name when I intended to deliver it to Senator Tunney.
Mr. Whitten. I am sure you wouldn't, Senator.
Senator Cook. By the way, their first names are not the same.
Mr, Whitten. I am aware of that. Senator, having written both
of them many times.
Senator, as I explained, I believe Hank's desire — —
Senator Cook. Let's use last names, shall we, Mr. Whitten, so that
we don't have the problem that you have with first names.
Mr. Whitten. I believe it was Mr. Adams' desire to return the doc-
uments to the BIA because that is where they came from. Symboli-
cally it was important that they go back, this first major cache, to the
very place they had come from. It was his desire to show his good
faith so negotiations with the "\¥liite House could be recommenced.
However, he had on December 11, returned documents, returned ma-
terials, from the BIA to Agent Hyten.
Xow, Ivuowing that Agent Hyten was coordinating the return he
put the name of Agent Hyten. the ultimate receiver of the documents,
on the boxes. I wrote on one and he wrote on two.
Senator Cook. Did he express that theory to you when you were
writing the names on the boxes ?
Mr. Whitten. Then or close to it, I do not know whether it was
exactly at that time or just before it.
Senator Cook. I still have to figure out in my own mind why, if it
was so symbolic that they be returned to the BIA, they would be re-
turned to an employee of the Llouse Appropriations Subcommittee
located at the BIA and have the name of ]Mr. Hyten, an FBI agent,
on them. Especially when they were to be delivered to Mr. Creedon,
who was not an employee of BIA, and who happens to have an office in
the BIA building.
Mr. Whitten. Is that a question?
Senator Cook. No ; it is just an analysis of mine,
]SIay I also say that if, in fact, these were to be delivered in this
symbolic fashion, which you so indicated, it would have been just as
easy for either Mr. Adams or you, as a matter of fact, with this great
effort to provide transportation, to have the 150 pounds of documents
that you didn't want to look at, picked up by the BIA.
Mr. Whitten. I will correct you, sir ; I did look at some of them.
Senator Cook. You could have notified either the FBI or the BIA
that the night before the documents were in a locked box at the Grey-
hound Bus Station and could have been picked up there.
503
jMr. Whitten. Is that a question ?
Senator Cook. "Would you think that would be just as easy ?
jNIr. Whitten, I don't understand what you are asking me.
Senator Cook. Do you think it would have been just as easy to
symbolically advise the BIA that there were 150 pounds of stolen
documents from the BIA building and they were located in a box,
number so and so, at the Greyhound Bus Station, and that they could
have been picked i\p there ?
Mr. Whittex. Well, you are asking me to speculate on Hank's, on
Mr. Adams'
Senator Cook. Well, there is great speculation, Mr. Whitten, when
you say these boxes that had the name of Hyten on them were going
to be delivered to Mr. Creedon and Mr. Creedon was patiently waiting
to receive them, that this was, in fact, what was going t-o occur.
]\Ir. Whitten. ]Mr. Creedon, as I said. Senator, earlier in my testi-
mony, was not aware that the documents were coming back to him. I
made that explicit and I don't
Senator Cook. Why do you think he didn't indicate this to Mr.
Creedon when he was talking to him ?
Mr. Whittex. Sir, if I could finish my answer.
It would be a great disservice for me to suggest that Mr. Creedon,
the House investigator, knew that there were going to be documents
coming back. He did not know and I want to make that very explicit.
Senator Cook. But yet, once before, Mr. Adams advised agents in
the FBI that he had material that had been stolen from the BIA and
that he was bringing it back. Whj do you think he would fail to do
that on this occasion ?
Mr. Whitten. This was the first major cache of BIA documents to
be returned through the good offices of Mr. Adams in line with the
numerous statements tliat he had made about trying to get them back.
Senator Cook. So we do have a situation here where there were
three boxes and you helped deliver them and you brought one of
them out of the house.
iNIr. Whitten. No, I did not help deliver them.
Senator Cook. You were in the process of helping, were you not ?
Mv. Whitten. This is a bit of difference. If I had delivered them
I never would have been arrested because the FBI would have seen
them there at the BIA.
Senator Cook. Were you in the process of delivering them?
Mr. Whitten. Yes, sir.
Senator Cook. It was your automobile?
Mr. Whitten. I explained why, sir
Senator Cook. And you carried the box out of the apartment?
jNIr. Whitten. I would willingly have carried all three boxes out
of the apartment. Mr. Adams was shot some 2 years ago in the stomach
by white vigilantes. He was in an automobile accident a few weeks
before and he had severe chest pains. Had he let me I would have
carried all three of them out there as well.
Senator Cook. I don't blame you.
]Mr. Whitten. Thank you. I loiow you would be a man of good
will, you would have helped.
504
Senator Cook. Mr, Wliitten, you said the three cartons were full
of old land decisions and the like, so you did review the documents
in the boxes?
Mr. WiiiTTEN. Very briefly, Senator.
Senator Cook. Well, it would have had to be vei-y briefly because
the record shows you were in there 15 minutes, or 15 to 20 minutes,
and that was all.
ISIr. WiTiTTEN. Yes, sir. I was unable to look at them for all 15
minutes but they did look
Senator Cook. Those are all the questions I have for Mr. Wliitten,
Senator.
Senator Tunnet. INIr. 'Whitten, what did you say to the FBI agents
at the time of your arrest? Did you advise the agents, for instance,
of the numerous statements that had been made by Mr. Adams that
he planned to return the documents?
Mr. Whitten. No, Senator. Mostly I put up a great howl about
the first amendment being violated in my case. I mentioned to the
agents that if they looked at the top of the boxes they would see they
were going back to the FBI anyway through an intermediary, and
I know that "intermediary" is an unusual word and it stuck in my
mind. I meant by that the BIx4. but I did not recite to them Hank
Adams' efforts to get the documents back prior to that. Perhaps I
should have.
Senator Tunnet. Did Mr. Adams, to vour knowledge, relate to
them ?
]\Ir. Whitten. I don't know. Senator.
Senator Tunnet. At any time before you were jailed did you have
occasion to mention to the agents the nature of your assistance in
returning the documents to the Government?
Mr. Whitten. Well, yes, as I said a moment before, I said if they
looked at the tops of the boxes they would see they were going back
to the FBI anyway and then I said through an intermediary. I did
make clear they were being returned to them, to the U.S. Government.
Senator Tunnet. Wliat did the agents tell you ?
Mr. Whitten. They seemed almost as nervous as I was, Senator
Tunney. Well, there was a lot of sort of ritual stork dancing arou.nd
there. I was reciting my first amendment rights and they said ''We
heard you." And I said, "I wish you would let me take notes on it,"
because they had taken them and they said "My memory is good."
and I said, "I wish you would record it so my protest could be made
public," and they said, "We have good memories." and I said "Could
you record it," and they said "We don't have tape recorders," and I
said, "Can't you record it on your car radio," and they said that the
car radio didn't have facilities. Also I asked them about an arrest
warrant and numerous other things.
Senator Tunnet. Did they ever mention to you why they were ar-
resting vou ?
Mr. Whitten. I believe they did. Certainly at one time thev did.
They told me I was being arrested and charged with possession of
stolen Government property or documents. They were, except for the
one incident of taking the notes away from me, which were later re-
turned, they were very courteous to me, I have to say that, although
it still makes you a little uncomfortable.
505
Senator Tunney. To your knowledge, did Mr. Gray have any per-
sonal knowledge of ^Ir. Adanis' desire to return the documents to the
Government ?
As I listened to your testimony, it is clear that there were many
published reports that Mr. Adams was intending to deliver these
documents to the Government. Do you know whether Mr. Gray had
any j)ersonal knowledge ?
3lr. Whittex. Senator, I can't say that I do know that. I can't
believe that a man as ■well read and in as sensitive a position as he is
in does not read such papers as the Times and the Post where all of
this was made perfectly clear.
Senator Cook. Careful, Mr. Whitten, don't push him on the Post.
[Laughter.]
Senator Tunney. You quote in your testimony Mr. Gray's testi-
mony to this committee that "We have checked with everyone at the
Bureau of Indian Affairs that we could check with and not one of
them said that they had any appointment with Mr. Adams."
Do you have any knowledge of who the collective "we" is besides
Mr. Gray himself { Was he referring to agents of his in the Bureau
of Indian Affairs with any inside knowledge? Do you know who those
other people would be besides Mr. Gray himself ?
Mr. Whitten. No, Senator. In context, it looks like only Mr. Gray
and his agents. It was obvious that he had been briefed, prior to testi-
fying here, upon what he had to tell you, although who briefed him,
I don't know. But that is presumptive rather than certain.
Senator Tunney. At any time before your jailing did you explain
clearly to anyone in authority, the sergeant who booked you or who-
ever it was who booked you, what it was that you were doing?
Mr. Whitten. You mean before I was jailed? I think I could really
not have been more explicit to the FBI agents that I felt I was doing
my job under the first amendment and that the documents were going
back to the U.S. Government. That I did make clear, although I didn't
give them any formal statement when I was in custody.
Senator Tunney. Now, prior to going before the grand jury, did
you have any contact with the U.S. attorney or with any of his people
as to what it was that you were attempting to do ? Did you have any
opportunity to explain thoroughly what it was that you were doing in
helping Mr. Adams ?
Mr. Whitten. Senator, we, for better or for worse, fought it in our
column and in person. I went on television and said it and I know that
the FBI and Justice Department knew about that because they ques-
tioned me about what I had said on the television show. They had a
transcript of it apparently. They were asking me questions about ^yhat
I said so I knew they knew what my view was, and Jack wrote quite a
few columns about 'it, and I wrote a piece for the New York Times
about it.
Senator Tunney. This was all before.
Mr. Whitten. Before I went before the grand jury. And my lawyers
of course were talking with the U.S. attorney's people.
Senator Tunney. I^^iat did the U.S. attorney's office say to you and
your law^^ers with respect to why it was that they were prosecuting
the case ?
Mr. Whitten. Well
506
Senator Cook. May I ask Mr. '\^1iitten : at the time that this
occurred, were you with your attorneys when they were talking with
the U.S. attorney ? Or was it your attorneys who were talking with the
U.S. attorney?
Mr. Whitten, It was my attorneys, Senator Cook.
Senator Cook. And you Avere not present with them ?
Mr. Whittex. No, I was not, sir.
Does that preclude my answering ?
Senator Cook, Xo, it doesn't.
Senator Tunney. It would in a court of law but not here.
Mr. WiiiTTEX. I don't know how much I am supiDOsed to say about
what the lawyers tell you, but just in a general way, within a few days
after they had arrested us they apparently sort of wished they hadn't,
I mean everybody seemed to be looking down there for some way to
get the egg off their face, but that is just in a general way what I
gathered. I am not sure I should be explicit about what the lawyers
told me about what
Senator Cook. Mr. ^Miitten, you certainly can. That is a client-
attorney relationship and j'ou are the client so you are free to say
anything.
Mr. Whittex. I don't think it would be fair to their lawyers and to
my lawyers and, to tell you the truth, it probably wouldn't be fair to
the DA's down there. The one DA at the grand jury, although he was
the same fellow who knocked off our records, was at least, in question-
ing me, eminently fair. They agreed — here is something that was done
and was said publicly — they agreed in the grand jury not to ask me
about my sources, and the DA, a fellow named Rudy, was just abso-
lutely meticulous about that. I don't mean to go afield with it.
Senator Tuxxey. The reason that I ask you that question : it has
been my impression, perhaps it was in a column that I read, perhaps
it was something that you said earlier, that in effect this was a political
arrest, an attempt to harass Jack Anderson. I am curious to know,
besides what j'ou have told us, what conversations or communications
you had with Government agents that would lead you to that belief,
other than what you have testified to already.
Mr. Whittex. Okay. I have two quick ones, and then Jack has a
lot more on that. Would that be okay ?
Senator Tuxxey. Yes.
Mr. Whittex, All right, I personally got, from three pretty good
sources, honestly it wasn't good enough for me to write it, in my view,
but good sources, three statements :
One was that the Wliite House had said they were out to get us
and that they were maybe going to plant some phony documents on us,
that is the FBI, OK,
The second was that the FBI might be going so far as to do what is
called a bag job on us, which is a burglary where they come and take
your things while you are out of the house.
The third one, which contradicts both of those two, is that it was just
an episode in which the police had, i,e,, the FBI, had blundered.
In answer to your question I am saying that the information that
I had, in my view, wasn't good enough to write, and so I put it forward
on that basis without meaning to draw, to have people draw, the con-
clusion that it is necessarily true. Jack has more information that he
knows from direct reporting on it.
507
Mr. Andeeson. My own White House sources say that the word was
passed down from the AVhite House to try to make a case against us,
to go after both us and the Washington Post. That information came
from extremely reliable and reputable White House sources.
They say that they were not present when the instructions were
passed from the President and they were very protective of the Presi-
dent. They said they were quite sure that probably the President was
irate over something he had read in a column and said, "We have got
to stop those leaks,'' or something like that. But whatever it was the
President said, and they were confident that the President would not
have ordered the arrest of Les Whitten, they felt that the President
must have made some general statement and then H. E. Haldeman,
his chief of staff, implemented that by sending word to the FBI and
the Justice Department they wanted to do something about it and
about the Washington Post. That came from inside the White Plouse.
Senator Tunney. Mr. Anderson, is the FBI still calling people whose
phone numbers appeared on the phone lists '^
Mr. Anderson. As far as I know they are not, not since we wrote
the story that they had gotten hold of these toll calls. I think maybe it
would be helpful if we did this chronologically, in view of what jMr.
Whitten found out this morning from Mr. Creedon. Mr. Creedon told
Mr. AVhitten that he had told the two FBI agents on February 1 that
]Mr. Adams did indeed have an appointment with liim. That the story
that Mr. Adams was telling, in other words, that his purpose was to
return the documents, that that story was true. That was confirmed
on February 1 to two FBI agents by Mr. Creedon. The subpena for
my toll records went out on February 2. This was after the FBI, there-
fore, knew that no crime was being committed. You see it is not a ciime
to return documents. So on February 2, after the FBI had already had
their conversation with Mr. Creedon, they still asked the Justice De-
partment— the grand jury to subpena my home and office telephone
numbers. I ap]3eared before the grand jury. Senator, and when I
appeared, ]Mr. Rudy, the U.S. attorney, made a point, emphasized
strongly, that I was in no way involved in this, that no criminal
charges or criminal suspicions Avere to be lodged against me, and yet
it was my home telephone calls that were being subpenaed. I am in
no way involved in this matter by tlieir own statement, by the U.S.
attorney's own statement before the grand jury, and yet mv home
telephone calls going back to July were subpenaed. I suggest that this
disputes, this absolutely contradicts, what Mr. Gray testified under
oath before this committee.
Senator Cook. Senator Tunney, would you yield for just a moment?
Senator Tunney. Yes.
Senator Cook. Mr. Anderson, did you just say, and it kind of went
past me, but if it is in the record it is, did you say that Mr. Creedon
told you or told somebody that on that occasion he Avas to receive these
documents ?
Mr. Anderson. Xo; that he had an appointment, Avhich confirmed
Mv. Adams
Senator Cook. All right. I thought you said something about an
appointment for the return of the documents. I thought JMr. Whitten
made it clear that he did not know that these documents were to bA
returned.
508
Mr. Anderson. That is correct. JNIr. Creedon
Senator Cook. All right.
Mr. Anderson [continuing]. Simply confirmed that Mr. Adams had
a 10 o'clock appointment.
Senator Cook. Thank you.
Mr. Anderson. That is where obviously they were headed because
if they had a 10 o'clock appointment thej could have gone nowhere
else if they were to keep that appointment.
Senator Tunney. As I understood your testimony, some of your
correspondents over the phone were questioned by the FBI regarding
matters that had absolutely nothing to do with the case against Les
Whitten?
INIr. Anderson. That is not completely accurate. "Wliat I said was
that they became aware, by FBI inquiries. There was at least one, a
Robert Updike, who did get a direct inquiry from the FBI. Most
of the inquiries were not direct, but people in Government, in par-
ticular, who had received calls from me, or who had called me, became
aware that the FBI was inquiring about them. People who were con-
tacted by the FBI would tell them, "The FBI has been asking ques-
tions about you." And this coincided with the receipt of my toll calls,
so I am just putting two and two together and assuming there is a
relationship. I think there had to be a relationship.
Senator Tunney. But was the inquiry about these people in refer-
ence to the stolen documents?
Mr. Anderson. No ; because these were people — ^there was actually
one inside the FBI — certainly they didn't think that an FBI man
would l>e stealing the documents. There was
Senator Cook. Mr. Anderson, didn't you say, excuse me. Senator,
but didn't you say in one of your columns that one of the calls was
to Phoenix?
Mr. Anderson. Yes.
Senator Cook. Wasn't it reported in one of your columns that
Mr. Whitten had been in Phoenix and that he had seen some of the
documents in a Phoenix motel or in a Phoenix hotel ?
Mr. Anderson. That is true, but ISIr. Updike
Senator Cook. All right.
j\Ir. Anderson [continuing]. Had nothing to do with it.
Senator Cook. Understand, I cannot condone the acquisition of
your telephone records, and, particularly, I cannot condone the acqui-
sition of your records prior to the date of the BIA situation, under
any circumstances.
Mr. Anderson. And the calls — since you brought it up, let me
amplify it so the record will be quite clear on it — the calls that were
made to jSfr. Updike were very recent, they didn't go back to Novem-
ber, they didn't have anything to do with the BIA. They had to do
with the drunk driving charge against Senator Fannin. We used Mr.
Updike's name in the column about Senator Fannin. Mr. Updike was
an assistant prosecutor who had written a memorandum to his — —
Senator Cook. I guess what I am really trying to show is that at
least in one column you made it clear Mr. Whitten had been in
Phoenix and that he had looked over some of the stolen documents
while he was in Phoenix and this was a part of the trip that he had
made.
509
Mr. Anderson. He had gone to Phoenix, that is correct.
Senator Cook. All right.
Senator Tunney. So that I am clear in my own mind : There is no
specific evidence that you have that the inquiries that were being
made of sources that had been in telephonic communication with you
were with respect to matters other than the stolen documents from
the BIA?
Mr. Anderson. Quite the contrary. The people who were being
called were not people who — ^B-52 crewmen in Guam, and people in-
side— at least one source inside the FBI itself, people in the govern-
ment, suddenly are having an interest taken in why I should be calling
them. I don't know precisely, because it is hearsay, what the FBI was
asking, but these people became aware of FBI inquiries about them,
who Avas this fellow and what does he do, and questions about them,
and this happened and began hapi^ening immediately after Febru-
ary 2. There was obviously a sudden and great FBI curiosity into
people who happened to appear on my toll calls.
Senator Tunney. Thank you very much.
Senator Hart (presiding) . Senator Hruska.
Senator Hruska. Mr. Whitten, I notice in several places you seek
to impeach Mr. Gray's testimony and cast discredit upon it. On page 2,
for example, points 3 and 4 of your statement, you state that : "Mr.
Gray says his information is that the three cartons of documents were
'initially going to be delivered at North Carolina to representatives
of this column for a sum of money.' "
Then you go on to say, "Both parts are again totally false." Which
parts do you mean were totally false ?
Mr. Whitten. Well, sir, that we were going to North Carolina and
that we were going to give them any money.
Senator Hruska. Do you deny that Mr. Gray had information to
that effect?
Mr. Whitten. No ; but I say that the information he provided you
l»ased on the information that he had, which he must have believed
in or he would not have trotted it out for you, that that was false.
Senator Hruska. Mr. Gray's statement, of course, was that he re-
ceived information to that effect. You don't deny that he got such
information, do you ?
Mr. Whitten." I assume that he got such information, sir.
Senator Hruska. Yes ; well, it is not quite clear.
Mr. Whitten. And he presented it
Senator Hruska. That same technique was used in the following
paragraph : "At another point Mr. Gray says, 'The transfer of money
was to be made' accordin;^ to his information." Do you deny that he
received information to this effect ?
Mr. Whitten. No ; but I do deny there was any transfer of money
that was to be made.
Senator Hruska. That clarifies it.
Mr. Whitten. Not entirely, sir, he proffered that information to
' Senator Hruska. Well, he says he did. I just wondered if you knew
that he did not receive such information ?
Mr. Whitten. No ; I don't.
91-331— T3 33
510
Senator Hruska. Still at another place, points 6 and 7, you state
that "Mr. Gray says his information was that Anita Collins and Hank
Adams had been conferring with Jack Anderson to buy documents
stolen from the Bureau of Indian Affairs." Then you say in your testi-
mony'this is wildly false. So the falsity attaches to the information,
not the fact that Mr. Gray received such information? Am I correct
in putting it that way ?
Mr. Written. You are correct in putting it that way, yes, sir.
Senator Hruska. Thank you. That is all I have for the time being.
Senator Hart. I apologize for my temporary absence. I had an
appointment of long standing which I had to keep.
Without naming individuals in this business of who was telephoned,
can you bo a little more specific? ]Mr. Gray said that "When the toll
calls were obtained we looked only at tliose following the event itself
in order to locate the papers. We weren't looking for something that
had happened before." I take that to say that he looked at that list and
called on those who he had reason to believe might know something
about Mr. Whitten's part in this.
Mr. Anderson. It is very difficult without going into names. The
only name that I am permitted to give you is Mr. Updike. He has
agreed to that and is even willing to testify if you want to ask him
about it directly. But the others don't want to be involved, and I am
obliged to protect their confidence. But the}' were generallv people, as
I said, in Government. There seemed to be a particular FBI curiosity
about people in Government who might be in telephonic contact with
me, and people in the military, as I said, some B-52 crewmen.
I had been in touch with B-52 crewmen by telephone on Guam. I
had been asking them about reports I had heard about the mishandling
of the December raids over Hanoi. For 3 days B-52 bombers followed
the same flight plan. The gunners in Hanoi knew precisely where they
were coming and knew precisely how to knock them down. This caused
unnecessary loss of life. There were some B-52 crewmen who were
terribly ui^set about it. I spoke to them. This had nothing to do with
Indian affairs. So far as I know there are no Indians on those B-52
crews, but the FBI seemed greatly interested in which B-52 crewmen
I may have been talking to in Guam.
Senator Hart. Senator Cook.
Senator Cook. Let me make some observations, if I mav^
Mr. Chairm.an.
These are not questions really. As I view the situation, Mr. "Wliitten,
the boxes apparently consigned to Mr. Hyten were to go througli
Mr. Creedon. You have introduced news stories from the New York
Times and from the Post and from the Star about Mr. Adams' desire
to return these documents to the Federal Government. It would seem
to me if in fact 150 pounds of documents were going to be returned to
Mr. Creedon, who is not an employee of the BIA but of the House
Appropriations Subcommittee, that with all the publicity Mr. Adams
had gotten up to then about the fact that he wanted to return them. I
woukl suspect that if I were he and really wanted to do a job for t]:ie
Indians of the United States I would have had ABC, CBS,' NBC. and
everybody concerned, in Mr. Creedon's office there to witness the
acceptance of the 150 pounds of documents. I woidd have wanted all
the publicity that I could have received on the return of all these docu-
511
ments. Somehow this does not ring true to me that he Avould not \Yant
to take them to the highest official of the BIA he could have taken
them to. Obviously, since he was going to put them in your automobile
out on the street and ]iot in an alley, as you put it, he would have been
delighted to and could have gotten as much publicity as he wanted and
returned some 150 pounds, out of 2,000 pounds plus, of documents.
Secondly, Mr. Anderson, I must say, in all fairness, regarding your
analysis, that your sources at the White House couldn't pin down that
the President specifically said :
We want to get the Post and we want to get Jack Anderson,
I would add that having just gone through putting on an inaugura-
tion, I got so tired of hearing from people at the White House what
the President wanted, when, frankly, I knew damn well that the Presi-
dent wasn't interested in the things that they were discussing, I find it
difficult to believe, although there is some reason to believe that the
President might be a little unhappy at Jack Anderson. But, in all fair-
ness, I must sav I have to put it in perspective, because I ran into that
for several weeks, believe me.
Mr, Anderson-, I would be terribly disappointed if the President is
not unhap])y about what I write occasionally, but I certainly do agree
with you, I doubt it, I really doubt, and I hope the record is clear on
that, we certainly doubt, that the President of the United States or-
dered the arrest of Les Whitten, We don't believe that was true.
Senator Cook, Well, I feel that way, and I have to say that for some
of us who have to live through that day-by-day up here that really
does get a little bit tiresome.
Mr. Anderson. But there is no question, may I add, there is no ques-
tion, from the reports I got from high White House sources, that
H. R. Haldeman did j^ass down a general message, again his message
was also not specific, but he did pass down a message, and he is in a
fairly high level at the White House,
Senator Cook. I think I would agree with that. He is at a very high
level at the White House.
Mr, Whitten, Sir, could I get in one comment?
Senator Cook, Yes,
Mr. Whitten, If we had done that, then I would have lost my ex-
clusive. I really wouldn't have gone. This was a Wednesday and we
were shooting for a Saturday column and what I happened to say was
Hank Adams who has been
Senator Cook, In other words, what you are really saying is tliat
your participation in it then was for an exclusive story about the return
of these 150 pounds of documents ?
]Mr. Whitten, Yes, if ABC
Senator Cook. ^Ir. Adams had made an agreement if you would
assist him you would get an exclusive ?
Mv. Whitten. Well, it wasn't put quite that ironbound. He is really
a nice man, and I said, "Hank, you know, could I have it, and thea
I will put it in a column on Saturday," This was Wednesday, when we
write our Saturday column, and if ABC and everybody had been there,
and I wish now" that everybody had been, then vie would have lost our
storv.
512
Senator Cook. I wish they had been, too, Mr. Whitten. If in fact
150 pounds of documents had been delivered to Mr. Creedon in boxes
marked to be delivered to Mr. Hyten on a Wednesday, your exclusive
would have been pretty old by your colmnn on Saturday.
Mr. Whitten. You are right.
Senator Cook. Thank you.
Senator Hart. We have discussed these reports that the Bureau has,
including some apparently on Members of Congress. Mr. Anderson,
you have had access to some of these reports. I will not ask you your
source, but would you indicate when the last secret FBI dossier was
leaked to you ?
Mr. Anderson. I don't think I have received any actual documents
irom the FBI in the past 3 months.
Senator Cook. Do you think things are tightening up, Mr. Ander-
son?
Mr. Anderson. I am not certain, but I did bring some samples, I
have them here, and it is up to the committee whether they want to look
at them. Certainly the information in these, and I got it for only one
purpose and that was to establish what I had been told, and what 1 had
feared, namely that the FBI has been collecting raw gossip from unre-
liable informants, that the FBI has been putting into the files of non-
criminals, wiretap and bugging information picked up on these devices,
these insidious devices. I wanted to prove that, and I have, and the
information is here. This is just a selective sampling of some actual
FBI memos out of actual files. If you want to look at them, and I
think you should if you have any doubt that the FBI is doing this,
then I would like you to look at them. I would hope that in doing so.
Senator, that you would not, and I am sure you would not because I
certainly know the Senator's reputation for fairness and decency, but
I would think that you would not want to make this information
public, just as you would not want your file made public if it contained,
as it most likely does, a lot of raw gossip.
Senator Hart. I was curious as to whether in the incumbency of Mr.
Gray any such files have come to your attention ?
]\Ir. Anderson. I believe so. Certainly in the last 10 nionths we have
received files from the FBI. I am terrible about dates, Les remembers
some in December.
]Mr. Whitten. They weren't very good.
[Laughter.]
Mr. Anderson. So the answer is yes ; we have received them.
Senator Hruska. Would they be files which originated prior to
the time Mr. Gray arrived there ?
]Mr. Anderson. I believe that most of these files, if not all of them,
oriofinated before Mr. Gray.
Senator Hrttska. In Mr. Hoover's time ?
Mr. Anderson. Yes.
Senator Hruska. I notice several of the examples you gave in your
prepared statement were 1965. 1961, 1961, and so on, which would in-
dicate that they were older documents.
Mr. Anderson. Yes. I made that clear in the testimony that this
practice did not begin with Mr. Gray. I was troubled only when Mr.
Gray said the files did not exist.
513
Senator Hrusk^\. Is it indicated for wliat purposes those files were
maintained ? Would it have been for a position check, for example, or
would it have been either to establish or to disprove the credibility of
some witness? Do you know for what purpose these files, to which
you referred in your statement, were prepared ?
Mr. AxDERSOX. I can only speculate on that. I think, judging from
the kind of files that I have received, and the kind of information
contained in them, I think these files were kept on people because
they were prominent and controversial.
Senator Hruska. That is speculation ?
^Ir. AxDERSox. Well, the information contained in them would
not — let me go beyond this, I talked to some of the people on whom
I have files, and I Imow they did not apply for Federal joIds.
Senator Hritska. You mentioned that one file contained a reference
to homosexuality. If that file pertained to one considered for promo-
tion or appointment to high office, that would be a proper objective
for accumulating a file of that kind?
Mr. AxDERSox. Senator, this was a prominent movie star who was
not going to be promoted by the Government and was not likely to be
appointed by the Government.
Senator Hruska. I asked you if you knew what the purpose was
for these files. You say you can only speculate ?
Mr. AxDERSOx. That is right.
Senator Hruska. That is a fair statement?
Mr. Andersox. Eight. I can only speculate and, as I quoted from
one, there is a file on a man that begins "This subject," this individual,
"is not the subject of an FBI invesdgation." Yet there is a file on him.
Senator Hart. You may have been here this morning when Con-
gressman Koch told us of his efforts to see his file.
Mr. AxDERSOx. I almost volunteered to help him.
[Laughter.]
Senatx)r PIart. Can we be sure that his is not among those that you
have otiered to us?
'Sir. AxDERSox. Xo ; I don't think — let's check them off, but I don't
think we have
[Laughter.]
]Mr. AxDERsox. We don't have any files on Members of Congress
here. However, we have — yes ; we do, I am sorry, we do have one file
here on a ]Member of Congress. We have had access to the files that are
kept on jNIembers of Congress, and I noted this morning that you
wanted to know whether they just contained biographical informa-
tion. I can testify as an eyewitness on that. I have seen some of these
files and they do contain gossip information, they do contain informa-
tion taken from wiretaps, and bugging devices. I don't have any
information, may I clarify the record, I have no information that any
]Member of Congress has had his own phones tapped or his own office
bugged by the FBI. But what has happened is that the FBI has bugged
Mafia mombers and lobbyists from time to time the name of a Senator
or a Congressman might come up, and that information that comes on
a bus will then go into the Senator's or the Congressman's file. In one
specific case a lobbyist was boasting about how certain Senators and
certain Congressmen followed his instructions and would do what
fc
514
he wanted them to do. That information went into the Senators' and
Congressmen's files although it was probably a very wild and inaccu-
rate boast.
Senator Hart. As you say, this predates Mr. Gray, but it remains one
of tlie really most disturbing aspects of this hearing as far as I am
eoncerned. We would not, to use a favorite expression, handcuff the
police, but it would give every one of us confidence that except if
there is some reason to believe that we are engaged in a criminal
activity that we are free to move around and to sp>eak and to write
without it being put into a file.
Mr. Anderson. I certainly agree with you. It has a chilling effect
upon a democratic society. Senator. The one great advantage that we
have o\'er totalitarian countries, I have always liked to feel, is we don't
have to watch over our shoulder and now when you read through these
files you wonder whether you have to begin watching over your
shoulder. It does something to that feeling I have alwavs had that in
this country we are free. I feel less free when I know^that the FBI
may be listening or watching or tailing me. I lose that feeling, that
wonderful feeling, that I get when I leave the Iron Curtain countries
and come home and get a breath of good old American air, here we
are free and I like to feel that I am free. Quite frankly, I feel less
free knowing that the FBI is out shadowing and gathering gossip
and scurrilous information and vile information, prying into the bed-
rooms of prominent people, I feel less free when I know this goes on.
And I think, if I may be so presumptuous as to say so, that the Senate
must do something about it, because L. Patrick Gray is not going to.
This is quite clear to me from his testimony so far. I think that, gentle-
men, that you are going to have to see that he does something about it.
Senator Hart. That is not presumptuous and it states what I
believe.
I would suggest that the files which Mr. Anderson has offered will be
considered as available for any committee member who wants to take
him up on it. I would suggest that we not receive them for our com-
mittee file. But there may be members who, for perfectly good reasons,
may be in touch with you to see one or more of these files.*^
ISlr. Anderson. I would be happy to make them availal)le to a re-
sponsible ]NIember of Congress who wants to satisfy himself on that
point, certainly to any member of the committee w^ho wants to satisfy
himself on that point.
Senator Hart. Thank you very much, both of you.
]Mr. Whitten. Thank you for your courtesy, Senator.
Senator Hart. Our next witness, whose name we have heard in the
course of earlier testimony, is the national director, Survival of
American Indians Association, ]Mr. Hank Adams.
Mr. Adams, we bid you welcome.
Senator Tunney.
Senator Tunney. Mr. Chairman, yesterday afternoon I made a
statement before the committee that I did want to have the oppor-
tunity to have Mr. Dean and ]Mr. Gray come before the committee to
answer questions under oath with respect to Mr. Dean's relationship
with Mr. Liddy and any knowledge that Mr. Gray had of that re-
lationship prior to forwarding documents from the FBI to Mr. Dean
in the ^"\nh.ite House.
515
At 9 a.m. tliis morning, in response to my request last evening,
two FBI agents came to my office witli folders containing a number of
interviews and I had the opportunity to read those interviews. I made
a pledge prior to the time that I read those interviews that I would
not reveal what I read, and I will not reveal what I read. But I would
like to say that I still feel, as I did last night, that Mr. Dean and
Mr. Gray should come before the committee and under oath testify
concerning the circumstances of the FBI investigation and other facts
concerning the connection between Mr. John Dean and Mr. Gordon
Liddy.
Senator Cook. Mr. Chairman, as I understand Mr. Gray is still
under oath before this committee and he is subject to being brought
before the committee at any time.
Senator Hart. I think you can go beyond that. It is understood he
will return.
Senator Cook. All right.
Senator Tunney. I want to make it clear, Senator Cook, that I do
not in any way want to reveal what I have read, but I do want to say
for the record that the FBI was responsive to my request, that they
came down and made everything available to me that I wanted to see.
Senator Cook. I understand.
Senator Ttjnnet. I feel that both men should come before the com-
mittee and I do not want that request in any way to be interpreted as
•anvthing other than a reaffirmation of what t said yesterday.
Senator Cook. May I say, IMr. Chairman, not really in response to
what the Senator from California has just said, but I have been asked
by several reporters how I feel about Mr. Dean coming here, and I
w'ant to reiterate what I said in regard to the Flanigan episode some
time ago : If I were this individual and something derogatory had been
said of me in these hearings I would not only want to come but I have
a notion that I would intercede with my boss to see to it that I could
come. I want to make that very clear.
Senator Hakt. Good.
Mr. Adams, if you will rise.
Do you swear ithe testimony you will give in this proceeding will be
the truth, the whole truth, and nothing but the truth, so help you God ?
Mr. Adams. I do.
TESTIMONY OF HANK ADAMS, NATIONAL DIEECTOE, SUEVIVAL OF
AMEEICAN INDIANS ASSOCIATION
Senator Hart. Your prepared statement will be printed in full in
the record.
You may read it or summarize it as you prefer.
[The prepared statement referred to follows :]
Testimony of Hank Adams, National Director, Sxibvival of American
Indians Association
statejient in opposition to the senate confirmation of mr. l. patrick gray hi
to be director of the federal bureau of investigation (fbi)
Mr. Chairman and Members of the Judiciary Committee, I respectfully request
that mv statements be received into the record of these hearings. I request oppor-
tunity to address the Committee partially to respond to FBI Acting Director
Gray's personal attack against my motives, actions, integrity and character by his
516
testimony regarding my recent arrest by his agency. More importantly and pur-
posefully, I want to point out certain deficiencies in the operational policies and
practices of the FBI relating to American Indian people and federal criminal
statutes under the enforcement or investigative jurisdictions of the FBI.
I oppose confirmation of Mr. L. Patrick Gray's nomination to become FBI
Director because I believe his demonstrated disinterest and failure in eliminat-
ing discriminatory and negligent investigative and enforcement practices from
his agency's operations has been harmful to the American Indian community
and has denied many Indians the benefit and protections of laws within FBI
jux'isdictions.
Various other levels and divisions of the U.S. Justice Department and the
Department of the Interior may well warrant the blame for the inequities and
injuries which draw my concern, at least in greater measure than the FBI. How-
ever, I believe that Mr. Gray and the FBI have frequently betrayed whatever
independence and good conscience that may be allowed them by statute and orga-
nizationally within the Justice Department — ^and as frequently have not been
controlled by the obligations and responsibilities imposed upon them by law.
I call your attention to Wounded Knee, South Dakota. If Justice and the FBI
might be inclined to invoke the same situation as refutation to my charges —
as within hours they may regard it as basis for reputation and their future
pride — I believe it provides essential proof to my complaints.
The FBI has gained its present high visibility at Wounded Knee for reasons
arising from the fact that the Justice Department and its FBI chose to be in-
visible to Oglala Sioux Indians — seeking to preserve their personal liberties
and lives — on the Pine Ridge Reservation for months preceding the takeover and
occupation of that small town.
At time of this writing, the federal government has announced a 6 p.m., March 8,
1973, deadline for Indians at Wounded Knee to surrender or face police and mili-
tary action to "arrest" them. The United States has claimed that it "has gone
as far as it could go" to negotiate a settlement, but could not meet an "impossible
demand" that the Department of the Interior suspend two of its BIA oflBcials,
Aberdeen Area Office Director Wyman Babby and Agency Su}>erintendent or
Police Chief Stanley Lyman, and remove tribal chairman Richard Wilson from
his office in the Oglalla Sioux government.
I urge this Committee to examine the FBI's experience in the maintenance or
removal of Indian tribal governments. I appeal to this Committee for immediate
examination of the FBI's relationship to the Oglalla Sioux people over the past
five months — as well as those of other authorities and officials in the Justice
and Interior Departments.
During the week of November 20. 1972, the United States Attorney and the
FBI Office in Rapid City, South Dakota, refused to receive or act upon com-
plaints and requests for assistances against actions of Chairman Richard Wilson
and other Oglalla tribal authorities which were lodged by several tribal members,
including tribal council Vice-Chairman David Long and Russell Means. They
claimed violations of their legal and civil rights as well as continuing threats
against their lives and personal safety. They and other tribal members were con-
vinced by the Justice Department's attitudes and inaction that additional re-
quests or complaints would be futile. Both Interior and Justice agencies refused
to investigate complaints of violations of Title IS of the U.S. Code by tribal
officials which were presented from a number of sources.
The following excerpts from newsclips relate the actions complained of by tribal
members :
"Another AIM leader, Russell Means, was arrested on the reservation last week
for allegedly violating a tribal regulation prohibiting AIM activity on the
reservation.
Wilson said the Oglalla tribe has passed a resolution banning all AIM members
from the reservation." (Mitchell Repuhlic 11/30/72)
"Dick Wilson's contempt is uncompromising.
'They're a bunch of renegades,' he said, 'nothing but a bunch of spongers.
Here in Pine Ridge they bum off my poor people — poor Indians living on welfare.'
'They'i-e social misfits. Their lawlessness, their tactics of violence give the
rest of us (Indians )a bad name.'
W^ilson was so angry at the American Indian Movement (AIM) and its leaders
that he had 60 men deputized, armed them with clubs and Mace and gave them
a quick course in riot control in anticipation of a confrontation with AIM that
never came." (Minnea/nolis Tribune: Tribe Leader Says Militants Give Indiana
A Bad Name 11/26/72)
517
And relating to ostensibly "official and legal" tribal council, tribal court, and
tribal chairman's actions :
"At Pine Ridge on November 10 the Oglala Sioux Tribal Council, Dick Wilson,
president, passed a "unanimous resolution" not to recognize the American
Indian Movement in any of its actions.
On November 20 Theodore Tibbetts, chief judge of the Oglala Sioux Tribal
Court, signed a restraining order to prohibit Russell Means and Severt Young
Bear, as AIM leaders, from "joining any assembly for the next 30 days" * * *
On November 21 Wilson signed a memorandum suspending David Long as
vice president of the Oglala Sioux Tribe saying : "It is now common knowledge
that you have condoned publicly the American Indian Movement * * * con-
trary to the expressed action of the Oglala Sioux Tribal Council."
The day before Long's suspension. Means arrived on the reservation and was
arrested on a charge of violating the restraining order." {Rapid City Journal
11/25/72)
Regarding efforts to secure federal ( Justice — FBI ) actions in Rapid City :
"Later Long and Means came to Rapid City where they called a press con-
ference to denounce the arrest as a violation of constitutional rights to freedom
of speech, religion and assembly."
"Long said he has been re-elected to the vice president's seat four times and
plans to ask the United States attorney to investigate Wilson's "unconstitutional
actions."
Long said his support has been with the Trail of Broken Treaties Caravan,
which is not an AIM group. * * * The Indian leader said some of the worst
failures are land management and care for the elderly. Long said the federal
government has to recognize these problems, and that was one of the purposes
of the caravan.
Long said, "Wilson is influencing the council in a violent way to keep people
quiet. He is seeking power and authority. * * * He continued, "I have bullet
holes in my windows and eight horses shot."
"The delegation charged that the BIA has hired 45 'unqualified' law enforce-
ment officers to guard the BIA office and two white-owned businesses, but said
there was no law and order on the rest of the reservation. They say it is unsafe
to drive on the roads, many people are armed and others are wearing football
helmets for protection.
Russell Means charges that Dick Colhoff, former head of law and order at
Pine Ridge, was moved to a temporary assignment at Flandreau before the
arrival of 40 caravan members because "Colhoff didn't want to issue weapons
to 45 unqualified guys." {Rapid City Journal 11/2.5/72)
Tribal chairman Wilson extended his threats, invitations and challenges broadly :
"Means was arrested on the rolling Pine Ridge Indian Reservation late
Monday and charged with violating a restraining order placed on him earlier in
the day which prohibited Means from participating in any assembly.
* * * Dick Wilson, 38, Oglala Sioux tribal chairman for eight months, said
he's received threats to his life and his family because of his opposition to AIM.
"If they want a showdown," Wilson said of AIM late Monday, "the Oglala
Sioux are ready for it."
"We won't tolerate this clowning around any more. They used one of our dead
people to capitalize on. Let them try some live ones now. We mean it out here."
* * * Wilson said Means arrived here Monday from Rosebud Reservation,
also in South Dakota, and the restraining order was drawn last Thursday and
issiied to Means almost immediately.
Wilson said Means later attended a meeting at the small community of Oglala
which had been called by tribal vice chairman David Long.
"Means went out there to talk to the group and try to justify the AIM actions
in Washington," Wilson said. Means was arrested soon thereafter.
"It was just a small meeting, but I'm not a believer in AIM." {Sioux Falls
Arnus-Lcader 11/22/72)
Means' attorney, Gary Tliomas, legal aid attorney on the reservation, was
also di.smissed by the tribe, and requested to leave the reservation. Means was
arrested for violation of a court order which restricted AIM activities on the
reservation. In the face of the order, he called a meeting on Monday afternoon,
at which about 25 Indians attended.
518
Tribal vice president, Dave Long, was suspended by Tribal President Dick
Wilson, for actions in violation of a tribal order made on November 10 not to
recognize the AIM in any of its actions. Long had apparently been furnishing
AIM with information from Pine Ridge, in violation of this tribal order. His
suspension is effective until further action by the Tribal Council, which is
expected to meet Tuesday. ( Chadron Record 11/23/72)
In my opinion, the deprivation of basic constitutional and human rights on the
Pine Ridge Reservation is obvious. This Committee should be particularly con-
cerned by the refusal of the Justice Department to give attention to such mat-
ters, inasmuch as these elementary rights were extended to Indian tribal members
for protection against abuses of tribal governing authority only five years ago —
after a near decade of persistent and conscientious work by the Honorable
Senator Sam Ervin of this Committee in bringing about their enactment.
On November 22, 1972, I wrote separately to the President of the United States
and to the Honorable Julia Butler Hansen, U.S. Representative, to express my
concern — upon learning that the Bureau of Indian Affairs was funnelling gen-
erous amounts of new funds into the Pine Ridge Reservation to effect enforce-
ments of these rights deprivations and denials, and to equip Cliairman Wilsou
with all the armed manpower he required to enforce his personal and court-
directed dictates. BIA Area Director Wyman Babby appeared to be the chief
advocate of the increased spending for these purposes. (Also in mid-November,
Director Babby had cut off disaster relief funds to Indians in Rapid City from
a $120,000 BIA allocation for victims of the flooding in that City. ) My complaint
to the President did not find routing to the Justice Department, but to Interior
which merely affirmed that Pine Ridge and other i-eservations were being pro-
vided such funds. (Oddly, the President is requesting $800,000 in new funds in
Fiscal Year 1974 for Interior to commit toward the "implementation" of the 1968-
"Indian Bill of Rights". Federal actions on the Pine Ridge Reservation have been
nothing less than a mockery of that measure.)
Mrs. Hansen responded to my letter and the general Indian situation by initi-
ating requests by the House Appropriations Committee to its Surveys and In-
vestigations Staff to undertalvc an exhaustive inquiry into such matters. The FBI
on January 31, 1973, seized various of the materials that I was acting to provide
that investigative unit of the Hou.^e.at the time I was arrested. Those documents
remain in the possession of the FBI — as do keys to my apartment, a typewriter
belonging to my organization (SAIA), and apparently two (2) movie films lie-
longing to organizations in the State of Washington and which are both produced
between 1968 and 1971. one by myself.
Returning again to the issues represented by Wounded Knee and the relation-
ships to the F.B.I. , some comparisons to other recent actions can be instructive.
When the Bureau of Indian Affairs became dissatisfied last year with the
Prairie Band Potawatomi Indians of Kansas tribal government, it requested
an FBI investigation of the tribal chairman's management of tribal funds and
governing authorities. When the FBI was not able to ascertain the commission
of any criminal offenses, the Bureau of Indian Affairs acted arl>itrarily on
October 4, 1972, to cancel the Potawatomi's tribal constitution and to suspend
their tribal government and officers. Brief excerpts from two news articles clarify
that situation and its resultant effects upon that 2300-member tribe :
"The BIA has withdrawn recognition of the Prairie Band's current con-
stitution, contending the withdrawal was at the request of the triiial lender-
ship. The contention is denied by Lester Jessepe, tribal chairman." {Toijeka
Capital 10/27/72)
The second article, titled. "Potawatomi Indians Sue to Reclaim Tribal Control",
is indicative of the remedies Indians have to fight for to overturn decisions once
made by the government :
"A federal court suit to force the U.S. Bureau of Indian Affairs to re-
instate the Potawatomi Indian constitution revoked Oct. 4 in Washington
has been filed by the tribal chairman and two other leaders of the tribe based
In Mayetta. Kan.
Tlae suit was filed Monday in U.S. District Court, Kansas City, Kansas,
by the chnirTuan. Lester L. Jessepe. and Frank Battese and Nelson Potts of
the tri1)es' 7-member business committee.
Named as defendants in the action are Louis R. Bruce, Commissioner of
Indian Affairs. Jack Carson, the Horton. Kan.. BIA agency superintendent,
and Rogers IMorton. Secretary of the Interior.
Presented by Mr. and Mrs. Malcolm Wheeler, professors of law at the
University of Kansas, the petition contends the revocation will jeopardize the
519
tribe's chances to complete the transfer of 1,300 acres of laud and buildings
of the former St. Mary's College at St. Mary's, Kan. The Missouri province
of the Society of Jesus last spring negotiated to complete the transfer
without compensation after the Indians, led by Jessepe, contended the land
rightfully belonged to the Prairie Band of the Potawatami Indians, the
formal name of the tribe.
Wheeler also asserts that the legal grounds for revocation cited by Bruce
under the U.S. Indian Reorganization Act of 1934 nowhere gives the com-
missioner the right to revoke a tribal constitution and in any case violates
the rights of Indians to self-government." {Kansas City (MO) Times
12/13/72)
Aberdeen Area Office Director Wyman Babby has also had recent experience
in revoking recognition of tribal oflBcials and governments in his own jurisdiction.
The Devils Lake Sioux Tribe of North Dakota held successive recalls and gen-
eral elections on August 23, 1972 ; October 6. 1972 ; and November 6, 1972 before
a slate of oflBcers was selected with his liking and acceptance. Approvingly,
Babby declared : "In the instances where written guidelines were not available,
we feel good judgment was exercised and find no reason to take exception to
decisions made." Apparently the Area Director did not bring the FBI into the
Devils Lake Sioux Tribe's political processes — although there were matters in-
volvetl there which would seem to have waiTanted it. Already the BIA had
audit information that more than $8,000.00 in tribal and tribally-controlled funds
were missing, with substantial evidence that embezzlement by a tribal officer
or employee had been committed.
The Phoenix Area Office Director John Artichoker has similarly refused to
call in FBI investigators or BIA auditors, and refused to provide information t«
tribal members in a situation where San Carlos Apache tribal officials, past and
present, have loaned themselves vast sums of tribal funds, owing the tribe
$184,307 as of October 1971, including a high amount of $55,000 to the tribal
chairman.
On the other hand. Area Director Artichoker did not hesitate for a moment
to take the action federal officials now find impossible at Pine Ridge, South
Dakota. He suspended the tribal gnvernnient of the Fort McDowell Mohave-
Apache Tribe on January 5. 1973. That situation provides some understanding
to the incident now occurring at Vv^ounded Knee. An article, titled, "CAP's Orme
Dam is LTnwanted by Indians, but No One Listens", pi'ovides the insight :
Their voices were pleading. There were no placards, no four-letter word.s,
no threats of violence. They just said : "Don't take our land . . . We don't
want the dam . . . Don't flood our reservation . . . We are not saying, don't
bring in the CAP . . ."
Robert Doka, chairman of the Fort McDowell Tribal Council, called the
community meeting yesterday afternoon so the people could be heard on
the Central Arizona Project's proposed Orme Dam. He invited officials of
the Bureau of Indian Affairs to come and listen, but they didn't come.
In authorizing the CAP, Congress directed that the tribe be paid the
aipi^raised price for the 12,000 acres of reservation land to be flooded by
Orme Dam, plus recreation rights on the reservoir and 2,500 acres of other
land, either upriver or to the east of their reservation. "We were given five
minutes to talk to Secretary of Interior Rogers Morton two weeks ago,"
said Ben Kill, member of the council.
"We wanted them to select an alternate site for the dam, store water in
Carl Pleasant Dam. use Granite Reef Dam, and not flood our reseiwation,"
Kill said. "But no one listens to us."
Throughout the afternoon, one by one, aging sons of the original Army
scouts at Fort McDowell, the women, and the young, all .spoke the same
words.
"They say they don't want the dam," said Harry Jones, who acted as
interiu'eter. (Phoenix Fepuhlic 12/27/72)
Followed a few days later, the news :
"John Artichoker, Phoenix area director for the Bureau of Indian Affairs,
has refused to certify results of the Dec. 18 election of Tribal Council mem-
bers on the Fort McDowell Indian Reservation, 25 miles east of Phoenix.
The action came to light yesterday when the Tribal Council met to prepare
to seat the new council members Tuesday. * * *
The BIA action is the first reaction to a statement 'by the tribal leaders
last week that BIA officials had not permitted them to tell Morton during a
520
Dec. 13 visit to Arizona how tliey felt about construction of tlie proposed
Orme Dam." {Phoenix RepuhJic 12/30/72)
*******
Mr. Chairman : I respectfully request that this portion of my statement be
accepted by the Committee at this time and that I be permitted to complete an
additional statement for entry in the record relating more fully my reasons
for opposing the confirmiation of Mr. Gray to be FBI Director.
I would likely have completed my prepared statement on a more timely basis,
or by novi'. tout as I've indicated previously, Mr. Gray has my typewriter. There
are a number of incidents which have occurred in my relationships and contacts
Avith the FBI, which I think would be helpful to the deliberations of this Com-
mittee and the Senate in this matter.
I sincerely appreciate your every consideration.
Respectfully siibmitted,
Hank Adams,
Hank Adams, SAIA,
Natio7ial Director.
Enclosures.
Two letters written by Hank Adams ; one to the Pi'esident, and one to Chair-
man of the House Appropriations Subcommittee on Interior and Related Agencies,
Julia Butler Hansen, are reprodiiced here. Adams' letter to the President calls
for Executive inquiry into "the failure to restore and care for records ... in the
Bureau of Indian Affairs Building." following the November occupation, and
"the use of federal and tribal funds to form a personal and private militia
for . . . Dick Wilson on the Pine Ridge, South Dakota Indian Reservation. . . ."
The letter to Mrs. Hansen particularly emphasizes this latter point.
November 22, 1972.
The President of the United States,
Richard M. Nixon,
The White House,
Waship.i/iotK D.C.
Mr. President : Two matters involving the present actions of certain federal
officials and the use of federal funds, representing an intolerable disregard of
any public trust or legal responsibilities and restraints, are extremely distressing
to us and warrant an intense concern and corrective action by responsible public
officials. These actions relating to (1) the failure to restore and care for records
and documents remaining and maintained in the Bureau of Indian Affairs Build-
ing, and (2) the use of federal and tribal funds to form a personal and private
militia for the service of Mr. Dick Wilson on the Pine Ridge, South Dakota,
Indian Reservation, appear totally out of character with positive attitudes and
actions demonstrated by Messrs. Leonard Garment and Frank Carlucci in my
recent negotiations with them in behalf of Indian people comprising the Trail of
Broken Treaties Caravan".
With respect to the Pine Ridge Indian Reservation situation, it is my under-
standing federally-commissioned Bureau of Indian Affairs (BIA) [personnel]
from a number of Reservations are being used to comprise a private police force
for the tribal chairman of that Sioux Tribe. Additionally, tribal funds are being
used, wholly on Chairman Wilson's personal authorization, to hire and arm a
band of "special citizen deputies" to supplement and increase the strength of the
federal police force. The focus of these forces appears to be tribal members who
were part of the Trail of Broken Treaties Caravan and who are now attempting
to return and remain in their home communities, but who are being threatened
with violence and serious injury and harm by irresponsible tribal officials who
are abusing their positions in a most flagrant and unacceptable manner. Also,
I understand that Mr. Wilson has suspended all other tribal officials who are
in disairreement with his actions — effectively has suspended tribal government
altogether, except for his own command and personal dictates — and has declared
that impeachment proceedings which had commenced against himself some time
ago, as well as new tribal elections, cannot now be honored or held nor proceed
to a constitutionally-mandated conclusion. I am requesting U.S. Representative
Julia Butler Plansen to seek a General Accounting Office (GAO) examination
into the misuse of federal funds and personnel, as well as any wrongful use of
tribal or trust funds, in this situation. However, it seems a matter that the
Administration should examine to ensure that any unlawful uses of federal funds,
personnel, or tribal and trust funds shall not be permitted or continue.
521
In the other matter, in the course of a survey of the BIA Building today, I was
shocked that there had been no efforts made on the first and second floors to
protect, recover or restore documents and records that ostensibly are essential
to a continiiation of federal services to numerous Indian tribes and a multitude
of Indian people. In fact, al! papers are being exposed to greater disorder, dis-
array and damage under the practices adopted since the November 8 evaciiation
of that building. As one who has acted through all forms available to me for
the protection of such materials during all the days of this month, I find the
actions of departmental-level federal officials controlling this matter as being^
both unconscionable in the present instance and demonstrative of the uncaring
attitudes and culpability which has characterized their actions during the same
time period. I urge and respectfully appeal to you to direct that a higher standard
of concern be invoked, that there be some cognizance given to the fact that
there is a public trust involved in the care of tlie public records involved and in
the custody of tribal and other Indian records and documents, and that there at
least be an exercise of elementary good judgment in acting by appropriate proc-
esses for the collection, restoration and protection of record materials inside the
BIA Building.
If the Administration is alternatively going to permit the departmental officials
to pursue their "the Indians be damned" policy with respect to these materials
and to other future actions, then that decision should be publicly announced in
order that Indian tribes and Indian people whose rights and interests are yet
being disregarded, denied or sacrificed within the Bureau of Indian Affairs
Building may proceed to other legal recourse, remedies and protections, whicls
may be required to be undertaken. We would hope instead that your office might
act' immediately to institute responsible and appropriate actions in these matters.
Most respectfully yours,
Hank Adams.
SAIA National Director and Principal Negotiator,
Trail of Broken Treaties Caravan.
November 22. 1972.
U.S. Representative Julia Bvtler Hansen.
Chairman. House Appropriations Subcommittee on Interior and Related Agencies,
House Office Building. Washington. B.C.
Deaf. Mrs. Hansen : I trust you shall, consider the matters of concern which
I have communicated in the enclosed letter to the President of the United States.
The particular issue which I believe merits your own attention and possible
action relates to the use of federally-commissioned Bureau of Indian Affairs
police officers, as well as the exi">enditure of tribal and/or trust funds for the
hiring and arming of ".special deputies" on the Pine Ridge Indian Reservation
of South Dakota.
There is no need to repeat tiie information provided to President Nixon. I do
know that the use of federal funds and personnel in this instance was certainly
not contemplated, nor could it be imagined, during the congressional appropria-
tions process for the current fiscal year (FY-7.3). It is not an emergency situa-
tion which is being confronted on the Pine Ridge Reservation, but rather tlie
conversion of federal and tribal resources to the operation of a private militia
and personal police force to respond to the personal paranoia of the Tribal
Chairman. Mr. Richard (Dick) Wilson. It could lead to tragic consequences.
Oglala Sioux participants in the Trail of Broken Treaties Caravan present no
threat to the personal safety and security of Mr. Wilson. However, they do live
upon the reservation of the Indian tribe of wliicli they are members — and should
be permitted to return to their homes there, without having their own personal
safety and security being threatened or themselves attacked. Caravan Indians
havemet in recent' days with responsible officials of other ^South Dakota tribes to
explain their con.stant purposes and objectives, as well as provide the details
of what actually happened while the Caravan was in this city.
The posture of the other South Dakota officials has generally transformed in
nature as to be consistent with that expressed Sunday by the .36 Washington
Tribes and urban Indian organizations represented on Governor Evans' Indian
Advisory Committee: "We are in a society that can take the Watergate incident,
Kennedy a.ssassinations, and My Lai massacre in stride. Under these circum-
stances it is very difficult to get the truth and undivided attention of the public.
W^e have been "getting lip service from a good-intentioned, no-action, white-
dominated government for too many years. Our urban brothers are themselves
522
the product of a failure of the BIA called the Relocation Program. They are
very understandably impatient and want affirmative action by the .arovernment
hut would be satisfied at this critical time with a show of sincere intent to
nesrotiate."
We are hopeful that you may consider requesting the General Accounting
Office (GAO), as the agent of Congress, to examine the propriety and legal
iiuydieations relating to the use of the federal and tribal resources in the Pine
Ridge situation. I believe that the findings of such a GAO examination would be
extremely helpful in the Appropriations hearings and actions of the next Con-
gress. Knowing your own concern that the BIA's "Law^ and Order" budget re-
quests have followed a pattern of giving lowest priority to human values and
community improvement, as in the present year's commitment of major new
funds to the purchase of new BIA police cars while still failing to seek pro-
visions for suitahle rehahilitation and treatment facilities in an attack against
accelerating crime rates, the flagrant ahuse of spending and police authority at
present on the Pine Ridffe Indian Reservation could contribute to the reordering
of program priorities that you and so many other people among Indian com-
munities have sought.
Joe DeLaCruz. the Quinault tribal chairman, can inform you of the disgrace-
ful disregard of Indian and public interests that is being evidenced by federal
officials in relation to records, documents, and other materials within the Bureau
of Indian Affairs building. He is a member of the newly-estabiished. NCAI-ini-
tiated "Special Impact Survey Task Force", chaired by Navajo chairman Peter
McDonald, and was with us on yesterday's "tour" of the building.
Another matter which I believe should I)e examined at your next appropriations
hearings involves questions relating to the roles played by the Vice President's
National Council on Indian Opportunity (NCIO) and its creation or creature, the
National Tribal Chairman's Association (NTCA). in the incidents, occurrences,
consequences, and aftermath evolving from the federal reaction to the "Trail of
Broken Treaties Caravan" and the BIA Building occupation. They appear
mutually reliant upon one another for justifications in support of either's con-
tinued existence — and. in thnt relationship, necessary to each other's federal
funding support. I fully anticipate that numerous tribes shall act immediately
to evaluate the propriety or impropriety of continued participation in the NTCA — ■
and would hope that the Congress might be prepared to closely question the need
and propriety of providing continued funding to the NCIO. (I do not suggest that
the Vice President himself became involved actively or acted wrongly in the
activities occurring this month. There has been ample evidence in the.se days to
convince most people that the highest level officials in the Administration are
deliberately insulated from, or not provided, the informations and facts which
would comi)el that better judgments be exercised and wiser forms of action be
followed.)
I look forward to meeting with you upon ynxir return in early December. I
will provide all information we have to your staff in the interim, fnid sincerely
hope that your office might proceed to act on our request relating to appropriate
involvement immediately by the GAO.
With best wishes and kindest personal regards, I remain
Respectfully yours,
Haxk Adams.
My name is Hank Adams. I am an Assiniboine Sionx and National
Director of tlie Survival of American Indians Association.
Briefly, I oppose confirmation of ^Ir. L. Patiick Gray's nomination
to become FBI Director because I believe his demonstrated disinterest
and faihire in eliminatine; discriminatory and negliofent investigative
and enforcement practices from his ao:ency's operations has been harm-
ful to the American Indian commnnitv and has denied many Indians
the benefit and ]:)rotections of laws within FBI inrisdictions.
Varions other levels and divisions of the IT.S. Jnstice Department
and the Depai'tment of the Interior may well warrant the blame for
the ineqnities and injuries which draw my concern, at least in irreater
measnre than the FBI. However, I believe that Mr. Gray and the FBI
have frequently betrayed whatever independence and good conscience
523
that mav be allo-wecl them b}' statute and organizationally within the
Justice Department — and as frequentl}^ have not been controlled by
the obligations and responsibilities imposed upon them by law.
There are a number of areas of law, criminal law, that relate to
Indian people of today that fall uiider the jurisdiction of the FBI,
and these range, Avell, generally called assimilated crimes act and per-
taining to 11 major crimes. This is an everyday relationship that
Indian reservations and Indian people have with the FBI, and al-
though I do want to clarify certain points raised about the arrest
action of myself here in Washington, D.C., I do want to relate more
fully to our everyday relationship with the FBI within our own com-
munities, and where you have FBI investigating a one time thing or
one major event, the Watergate incident, we had become concerned
where there is an FBI intervention in the everyday politics — Indian
politics, tribal politics — in our whole community. They are not in-
vestigating, they are involved.
There is some real problem with Indians now fully understanding
their relationship to the FBI, which has, of course, investigative
enforcement jurisdiction over certain crimes occurring by or against
Indians on Indian reservations. The difficulty that we have is that the
FBI has never been a service, a police service, agency for Indian peo-
ple but, not only, for the Justice Department, but also the Department
of Interior; and frequentlv political decisions are made, both by the
Justice Depaitment and the Department oi" Interior, where the' FBI
should become involved in a matter that they are bound to enforce
under law on an Indian reservation. And these are generally matters
that the Director becomes involved in, and I have seen some of tliese
transmittal statements from, under the name of Patrick Gray to the
Commissioner of Indian Affairs relating to Indian individuals within
the community who may be challenging a favored tribal council of the
Department of Interior — and usually being negative information in
nature lieing transmitted.
Wnen you see what is happening out at Wounded Knee, today there
is a large force of policemen, many of these people are FBI men, and
the jurisdiction tliat carries tliem there is the fact that Indians are
involved on an Indian reservation. But why the Indians are in
Wounded Knee is because the FBI and the U.S. Attorney for South
Dakota, or its probable one district, but operating out of Eapid City,
has chosen to ignore complaints lodged with tl-em by Oglala Sioux
Indians for at least the last 5 months; complaints that were drawn
against an abuse of tribal authority, an abuse of Federal funding ])ro-
cedures whereby BIA funds were funneled in at a higher than budget
level to build up a private security force for a tribal chairman who
maintains a bunch of nonuniformed special deputies who go out and
beat up people who oppose the tribal chairman.
Tliis committee, the Judiciary Committee, worked from tlie late
1950's until 1968 trying to develop a bill of rights for Americfin In-
dians to protect them against abuses of tribal authorities, and Indian
people have only had benefits and protection of the bill of rip-^>ts for
the past 5 years on tlieir reservation, not 200 years under tlie U.S.
Constitution. And here you liave the FBI in South Dakota, aware of
wliat is going on and choosing to do nothing about it, that could have
524
well turned into an event as was investigated and prosecuted by the
United States in Mississippi relating to three civil rights workers
some years ago.
Here you have it at a higher level, you have a tribal chairman, an
area superintendent at the Bureau of Indian Affairs, using Federal
funds to deprive individual Indian people of liberties and potentially
a loss of their lives, and you have the BIA on there yesteiday saying
"We cannot intervene in tribal politics." But last October, or prior to
last October, in Kansas the FBI was sent in to investigate a tribal
chairman who was objectionable to the Bureau of Indian Affairs, and
apparently nothing criminal was disclosed in that investigation, be-
cause the Bureau had to rely upon some other nonexistent authority.
Tjiey cited authority of 19?>4 Indian Reorganization Act and they
cancelled the constitution of the Prairie band of Potawatomi Indians
in Kansas, arid suspended their government.
In other cases wliere embezzlement of tril:)al and tribally controlled
funds has been made a Federal crime under the jurisdiction of the FBI
when tribal members take complaints to the FBI. the FBI wiil not act
upon tliat information unless the Bureau of Indian Affairs approves
an action. It does not, as in Mr. Gray's observations on niv own case.
occur because thoy saw an offense liappening or an offense that had
happened. Thev ignore it altogether unless they get this political ap-
proval to act, and wh.en they don't act the BIA uses tliis information
in an extortive wav airainst Indian tribal governments.
In othov cases, going back pi'ior to ]Mr. Gray's becoming Acting
Director, tliore liave been a parri'>])oi' of instaix-c"- wlioi-r* t-'e FBI ho^^
been called in to investigate certain cases relating to Indians, where
their investigating have been totalh^ inadequate and negligent. And
I would I'aise a couple of them now because I don't see any improve-
ment imder ]Mr. Gray, and I don't see anythino- but absolute in-
difference to most offenses occurring against Indian individuals in
Indian country by Mr. Gray.
In one case there was a shooting of an Indian by a police officer.
The police officer, there were thi'ee police officers, who shot this 1.5-
year-old Indian hoy. and the three police officers refused to talk to
the FBI. The Indian victim talked to the FBI or was available to
tliem. Ro^vover, the shooting: incident was also investigated by a
former FBI acrent who said the officers were justified in shooting this
person. An.d from tliat point forward, well, that former FBI a.o-ent
was then named U.S. Marshal for the Western District of Washing-
ton, bnt the FBI then immediately would refuse to receive any more
information on the case.
The case went into a court of law, and there was sworn testimonv
by all the parties involved. ]S"o FBI investigators were there, although
the case was still active. ITnder the questioning of a superior court
judge, the officers' contradictions and justifications became — the defi-
ciency of justification — became real apparent, and the evidence was
there in a transcript. And the FBI on this active case refused to jret the
sworn testimonv, and the judge acquitted the youth of precipitating
his being shot bv an attack. And then later with mvself acting as a
guardian recovered some money from this officer for having shot this
youth. But the FBI's involvement was completelv unhelpful and an
abandonment of their obligations under the law, the laws relating to
525
Indians and the laws relating to Indian lands. This is an everyday
thing-.
In other cases on Fort Berthold Reservation tliere was a young man
who was missing, and his family feared something had happened to
him, and so they went to the FBI and said they thought he might have
been abducted or killed or something, and the FBI refused to act for
more than 4 months. However, within that 4-month period that young
man was drafted into the U.S. Army and as soon as he became a delin-
quent draftee, well then the FBI started hunting around for him in a
lot of communities. And they did ultimately find his dead bodj^ buried
awaj^ But there were other laws on the books that should be for the
protection of those families and those persons under FBI jurisdiction.
But it is not there when Indians ask for it. It is there — if BIA directs
it, or if the U.S. attorney directs it.
In other cases in another Indian reservation, my former sister-in-law
took a number of complaints to the FBI ancl U.S. attorney but they
refused to act upon it, relating again to, say, embezzlement of tribal
funds, and there was no action.
Another case was complaints relating to armed vigilantes operating
on the Puyallup Indian Eescrvation, that the FBI and Justice Depart-
ment both refused to act on, and including where we were able to
prove involvement of State police officers, uniformed State police offi-
cers who under the cover of night came down and started threatening
Indians Avhen they were engaged in the exercise of their treaty rights.
Wlien vigilantes would come on the reservation when we would — not
with attorneys l^ut just by ourselves — go into court and get restraining
orders against State police action, because it is a Federal reservation
where they lack jurisdiction, well then they come down in the vigilante
forces and the FBI would not act.
The FBI did come clown immediately when, in the same place, I was
shot, where they had refused to act before, but then again it was pri-
marily because it was on pressure. It was covered fully in the press,
and there was a lot of pressure put on the Justice Department and on
the Department of Interior. But when it happens everyday to Indians
who don't have public recognition or name, well it just goes by unno-
ticed and still there is no action by the Federal Government — again
unless the BIA has some recent requests for it. And frequently, as I
say, they request that the FBI not act, or refuse to sup]:)ly information
to the FBI, if they want to, say, preserve a certain tribal government
or to preserve certain tribal officio Is.
Now, relating to my return of documents to the Federal (Govern-
ment: Director Gray — it would be real unlikely that the FBI acted
on any information that documents had come from North Carolina
and there was going to be a transfer of mone}' on the next day. The
search warrant that was used some 5 hours, 6 hours after my house
was ransacked, or my apartment, included information that the in-
formant, John Arellano, had peeked into the corner of a box when
it was slightly ojien to see there were folders in there, notel^ook filler-
type binders, and he identified the contents. I mean this is on a search
warrant issued sometime in the late afternoon of January 31, whicli is
still after our 10 :15 in the morning arrest, but on the outside of those
boxes were a number of return addresses that were labeled. And, prior
to taking these three boxes from my apartment, their handling had
91-331 — 73 34
526
been totally by this informant, and he knew they were from Sonth
Dakota. There was no reference or mention of North Carolina and in
the same way there was no mention of transfer of money or payment,
and I think it is, you know, hij^hly nnlikely that their agent, their
informant, would have indicated this. And the boxes were not being
returned to be turned over to Mr. Creedon, but they were going to be
taken to the Bureau of Indian Aifairs building and Mr. Creedon being
able to witness both the nature of the contents and their re-delivery.
Hyten's name I was putting on all three boxes. However, Mr. AYliit-
ten put the names on the last one for identification of those boxes down
at the Bureau of Indian Affairs building without knowing liow soon
the FBI might come to pick them up but also to just indicate for
people around the Bureau that they were to go to the FBI.
Senator Hart. May I inquire : You say that they were to go to the
FBI. Did you mean to the Bureau of Indian Affairs?
Mr. Ada:ms. No, they would have been transported to the Bureau of
Indian Affairs building and at that point I would have called from
the security area, and Mr. Creedon had indicated that he would meet
me at the l)ackdoor, which was the only door opened in the BIA build-
ing at that time, and then call Mr. Hj^ten from the phones there.
Now, when I previously had matters in possession, office machinery,
and I maintained them in my apartment for as much as 5 days at tlie
request of ]Mr. Hyten, because he indicated tliat he wouldn't be able to
come around prior to that time. Like once, on a Tliursday, he asked if
I could hold on to them until Monday because he couldn't — he was busy
on something else — and couldn't come around. So I didn't know how
long the boxes would be at the BIA building either and that is one of
the reasons I put this identification on them as well as the telephone
numbpr in order that I might call him from the area.
Additionally, the FBI secured from me, right after my arrest, and
copied, Xeroxed a copy of a note which had been left for me the pre-
vious afternoon wlien I was asleep and when this informant trans-
ported these three boxes from the bus station and carried them into
my apartment. There was this five-part note, part of it in the inform-
ant's handwriting, because apparently he was answering the phone
and writing down messages for me. But the last message on that note,
which the FBI had immediately, indicated, "We'll be over first thing
in the morning." And that, to me, demonstrated, you know, their
knowledge that, in fact, I was ex]:)ecting him initiallv to transport
those three boxes to the BIA building. And it was only after calling
Anita Collins, calling the house to which she had moved 3 days previ-
ous, to find out just what time they would be there because I had to
take these down to the Bureau.
I am not certain why they made the arrest. I am certain they k]iew
that I wasn't attempting either to sell these things nor to convert them
to my own personal use. One of the things I am certain is that the
informant thought that I was leaving town. On the Monday of that
week he drove me to my bank for closing out my account, and was
under the impression, I am certain, that I was leaving town for the
State of Washington for a while. And he knew also that there were
some documents probably in North Carolina. That — vou see I have not
known where properties and documents are in the country. But I had
information on my own inquiry that some were in North Carolina,
527
and I had information that perliaps even the largest bulk of docu-
ments was in Xorth Carolina, and they would have been traceable
perhaps through people that I didn't know but people who, perhaps,
Anita Collins knew. So she and this informant were going to the
Bureau of Indian Affairs building on most of the days of the previous
week trying to call to Xorth Carolina to try to make contacts in order
that we could go down to jSTorth Carolina and pick them up and bring
them back to the Government as we had indicated we would do.
Second, this informant had volunteered his Volkswagen van to go
down to Xorth Carolina and pick up what was expected of a sizable
^•olume of missing properties. I had not told him that he couldn't
do that but independently I had sought other transportation because
I did not know Johnnv Arellano very well and he reall}^ didn't have
that much communication with me.
There was some alternation in situation in relationship between my-
self and the FBI in January, and I had not had any direct contact
with Agent Hyten since the middle or latter of December. And the last
time I had seen him in jDerson was on December 11, when he had come
to my apartment to pick up different materials which he had asked
me to hold there until he could get by. And he had indicated prior
to that and at that time that the FBI, through the Director, had re-
quested Justice Department to make an arrangement with me, where-
by, or establish some system for a return of documents without every-
one being under a threat of arrest and prosecution, just for having
received something into their possession. And subsequent calls to him
were in relation to whether or not this neutral system for return of
properties had been approved or disapproved. But there was never
any answer stated to us regarding that letter — if, in fact, that letter
or written request had actually been made.
However, on January 10, I talked to Brad Patterson, an Indian
aft'aii-s specialist in the "\^^iite House, and he had made two separate
statements, one to the effect that the FBI is completing its investiga-
tion, and then in a slightly removed context but relating to j^rosecu-
tions, he said "We are going to get as many of you guys as we can."
And that did indicate a change in relationship between myself and the
executive branch of the Federal Government.
Briefly. Mr. Patterson had acknowledged to reporters that even
prior to the breakoff of negotiations last November 18, and subse-
quent to that, that I had requested meetings with the I'^Hiite House
and Justice Department people to arrange a system for return of prop-
erties. This was reported by William Blair in the "Xew York Times"
in tliat week of, or at the same time he reported on our return of 81
paintings through the Y]\ICA building here in Washington. And also,
as I said, when tlie White House negotiations were broken off, and
there was refusal to discuss this, to discuss return of properties, then
we did call John Dean to ask him why they wouldn't talk to us on
this. And I am not certain who called, secured the information, but
they said, no, that it was just on attorney's advice that they would not
Avork with us anv more until the FBI had done all the work that it was
going to do.
I^et's see, just finally. I would — additionally, in relation to the arrest
action. I do fiiul the foi-m and method of the search that was made
of my house as being ofl'ensive and somewhat unlawful. There was no
528
search warrant. I guess the undercover agent had secured copies of
keys to my apartment, and these keys were used to enter my apart-
ment. And a typewriter that has been in my possession for 5 years was
taken and remains under the jurisdiction of Mr. Gray. And a number
of documents not stolen, but dealing with Federal activities, were
taken and remain with Mr. Gra}^
My apartment keys, one set, remains under the jurisdiction of Mr.
Gray. The two fihns that they seized, one which I produced between
the years of 1968 and 1971, was missing and not receipted, and ap-
parently remains in the possession of Mr. Gray. And another film pro-
duced by a British television company in 1969, dealing with Indian
matters, was taken unreceipted and apparently remains under the
jurisdiction of Mr. Gray.
The search warrant wasn't received or wasn't secured from a court
until late on the afternoon of my arrest. Wlien reporters went to my
apartment and knocked they said that they were only there to wait
perhaps to arrest another accomplice, Michael Plunt, who, if they
were relying on their informant's information, they would have known
that Mr. Hunt had been gone from Washington, D.C., and in fact had
left some time before Christmas. And they weren't there for any reason
other than to look through my possessions.
Well, equally offensive was their going over to this young Indian
woman's house and occupying her house all day, again without a search
warrant, and more or less arresting her house and throwing herself
and her two or three little kids out, and then belatedly securing a
search warrant late in the evening.
From my apartment they took nothing that belonged to the Federal
Governm.ent; they took nothing that was stolen or wrongfully in my
possession. From the other house they did, I know, take a mail bag
that had BIA marking on it, and which I understand some Indians
had been using to hold their clothing stuff as they hitchhiked or
traveled around the country.
I think it has been an unwise waste of manpower for the FBI to
attempt to harass a number of Indian people, not only here in Wash-
ing, D.C., but through a number of their field offices, relating to these
missing properties, rather than engage a system that would have
effectively brought about their return. Any number of Indian families
have had, have been called upon by FBI agents, most of them not any
persons who even came to Washington, D.C., last November, but who
have some relationship, primarily families or relatives' houses. And
I know that the FBI does not commit this level of activity when an
offense occurs against an Indian person. And you have Indian neoiile
confronted with the type of attitude that was revealed in the Richard
Oakes trial this last week. Eichard Oakes being a major Indian leader
in this country. And you find the guy who is on trial for his death
being charged with involuntary manslaughter and the testimony that
came out in the court was, you know, "Well, it is open season on coons
and Indians." And because that attitude is. perhaps even prevalent,
in areas where Indians live, we do need that protection of the FBI.
But Mr. Hoover didn't afford it ; the law says it is there. There is no
indication that jSIr. Gray is going to afford that protection or be bound
by the obligations and responsibilities of that law in Indian country.
529
I Tvould hope that this committee, whether or not it confirms jSIr.
Gray, sex3ures from him some statement of policy on relationships
with Indian people on Indian reservations and the categories of law,
title 18, United States Code, that fall under its jurisdiction; so that,
you know, Indian people can also know just what we can expect of the
FBI and not find them, find us dealing with them, only when they come
in against us in an adversary prosecutional way — ^but also when we
need them for the protections and benefits of the laws that are on the
books.
That concludes my statement.
Senator Hart. It is an excellent statement, Mr. Adams, and I thank
you for it.
Vvliat was the date on which your arrest occurred ?
Mr. Adams. It was January 31, 1973.
Senator Hart. Did I understand you to sav that on an occasion or
occasions before that you had actually- been dealing with the FBI
agent, Mr. Hyten, with respect to the return to the Government of
other of the stolen property ?
]Mr. Adams. Yes, I had. I first met Dennis Hvten on, I think, Novem-
ber 13, and last saw him on December 11, when he did pick up some
office equipment and paintings, and then had subsequent telephone con-
versation with him relating t-o establishing, or getting Justice De-
partment approval, or someone's approval, for an expedited system
of return. Additionally, an attorney for a thing called NALDEF,
Terry Sidley, also had been in communication with him, and he had
been infonned tliat this request had been submitted from the FBI to
Justice for the return and he never got any final negative or affirmative
answer either. And this was based upon the fact a number of imiocent
people just had some things dropped out at their houses around the
Washington, D.C., district, and didn't want to just destroy them or
throw them away but to return them, and had appi'oached this orga-
nization NALDEF, which had supplied attorneys during the Trail of
Broken Ti-eaties, to see if they could establish some system of return.
Senator Hart. Am I correct it was this same FBI agent, Mr. Hyten,
that
Mr. Adams. That coordinated the arrest action.
Senator Hart. That obtaiiied the warrant that precipitated your
arrest on January 31 ?
Mr. Adams. Yes. He obtained the search warrant some hours after
my apartm.ent had been searched. It was Dennis Hjten.
Senator Hart. Was this the Dennis Hyten who knew, because you
had done it before January 31, that properties of the Government
obtained from the Bureau of Indian Affairs which had come into your
possession had been i-eturned by you to him ?
ISIr. Adajes. Yes. Yes, the same Dennis Hyten.
Senator Hart. I would not suggest that it was a pattern, but it had
occurred at least once ? Is that right ?
Mr. Adams. It occurred by myself, solely by myself, at least three
times previously. Once by mail, once by ^ir. Hvten coming to my apart-
ment and looking at some documents and taking copies of som.e, and
third, on December 11, picking up this office equipment and these
530
Navajo paintings. Additionally, I had a hand in returning 31 paint-
ings through the YMCA in early November.
Senator Hart. Was Mr. Hyten involved in that transaction?
Mr. Adams. I don't know if he was.
Ralph Ei'ickson in the Justice Department was involved in the first
one. However, I had discussed it with Mr. Plyten on the YMCA
paintings.
Senator Hart. At least you had indicated to him it was your inten-
tion to return that property, namely the paintings, by delivery to the
YMCA?
Mr. Adams. They had been delivered to the YMCA during the
course of the BIA occupation, they had been removed, cut from their
frames and ])acked for the purpose of protecting them from destruc-
tion, when there was some threat that the Bureau of Indian Affairs
building and its content might be destroyed. And so they had been
taken in the course of the occupation to the YMCA building and had
never left there again. There were some discussions, by a number of
persons who became awai'e of them, whether or not they should l^e
returned or wdiether they should be taken to some other part of the
United States for the exclusive benefit, use, and pleasure of Indian
people. I took a position in favor of their return.
Senator Hart. So there were three occasions when you returned to
Mr. Hyten property that had come into your hands from the Bureau
of Indian Affairs ? Three times ?
Mr. Adams. Yes. That is, prior to my arrest.
Senator Hart. Prior to your arrest. And there was a fourth tim.e,,
namely, the arrangement with respect to the picking up at the YMCA
of the paintings ?
Mr. Ada3is. Yes.
Except in that case I did not have direct contact with Justice at that
point.
Senator Hart. I understand that, but I am trying to find out whether
Mr. Hyten was aware that you were seeking to insure that those paint-
ings also were returned.
Mr. Adams. Yes; he was aware of it. I discussed it with him and
some of the additional things that were returned to him had direct rela-
tionship to the paintings. At that point, even with YIMCA, there was
a real question of whether they should go back to the BIA or whether
thev should be turned over to Justice Department. At that point there
had been scheduled a press conference by the YMCA to return these
with press coverage. However, the Justice Department — there was to
be, it was to be a transfer to BIA. But then that is when the Justice
Department entered, and they took the paintings and indicated that
things should be returned to FBI and Justice rather than to the BIA.
Senator Hart. Do I understand correctly that on one of the occasions
you offered the Government property to Mr. Hyten and he looked at it
and said. "I can't get there, keep it for several days."
Mr. Adams. He didn't look at it on the occasion that he asked me
to hold on to it. I had offered to bring it with me to this place that I
was going where Peter McDonald was holding a press conference;
but on the way, I told him, that I would drop some paintings off with
him, not at a press conference or anything. And he said he couldn't do
it then. And I said, "Wliat about tomorrow, or Friday?" and he said,
"No. Can you hold on to them until Monday?" I said "Okay."
531
Then by Monday some additional items had come into my possession,
namely office equipment, and so that was all returned at the same time.
He had asked me if I could just hold on to it until he was available on
Monday.
Senator Hart. So he was comfortable, at least at that time, in telling"
you to keep for him and the Government materials that you had offered
to return?
Mr. Adams. Yes. He seemed quite comfortable with it. However, I
was somewhat uncomfortable and I informed a couple of persons that
to use a search warrant and just come in and go through my things.
And I told them about it in case that did happen. However, he didn't
do that. He came around on the following Monday and j)icked it up.
Senator Hart. So your promise was kept ?
]Mr. Adams. Yes.
Senator Hart. The materials that you returned to, or through,
H\i:en then included some paintings, some office equipment, what else?
Mr. Adams. Some few documents.
Senator Hart. Some documents were also included ?
Mr. Adams. Yes; just a couple. It was primarily paintings and
office equipment. Then January 31, was the first return, major return,
of documents or papers.
Senator Hart. So on an earlier occasion some documents, a few docu-
ments, were returned ?
Mr. Adams. Yes.
Senator Hart. And the bulk you had, as you have described, you
intended to make delivery of and then were arrested ?
Mr, Adams. Yes.
Senator Hart. Senator Hruska.
Senator Hruska. One time you sent him an envelope, a legal-sized
envelope, 10 by 14?
Mr. Adams. Yes.
Senator Hruska. There were some papers in there that were quite-
illegible and Mr, Hyten didn't think they were pertinent. He didn't
think they were of any value or any meaning. Did he give those back
to you?
Mr. Adams. No; he didn't. Those particular items related to the
values of painting that were reported stolen. These were price tags,
names of paintings — which did verify, in fact, that price levels were
greatly exaggerated. The paintings that were taken from the Bureau
of Indian Affairs were reported to have num1)ered between 600 and
700 at an average value or possible value of $1,000 a piece.
Senator Hruska, What kind of papers were there that were de-
livered ?
Mr. Adams. These were packaging papers.
Senator Hruska. Brown papers ?
Mr, Adams, Yes ; but they had titles, names, artists' names on them,
and these were not valueless. They would be important for both iden-
tification and value, they would be important for identification of the
actual paintings, and the owner.
Senator Hruska. Mr. Hyten said they were illegible. Could you rtjad
them?
Mr. Adams. Yes ; I could.
532
Senator Hruska. He said lie couldn't read them, that they were
illegible fragments of brown paper, and that he didn't see any value to
those bits of brown paper.
Can you read better than he can ? Is that what you want us to under-
stand ?
Mr. Adams. You can understand that they were legible enough for
me and others to read them.
That was the only basis for preserving them, because they were
useful for identification. I am certain that if Mr. Hyten took any
of those particular paintings into court that he would appreciate hav-
ing that identification and value information on the papers.
Senator Hruska. I don't know. He reported that they were not
legible.
Mr. Adams. I am saying that they were legible. I can't speak for
Mr. Hyten 's ability to read anything.
Senator Hruska. Thank you very much.
Mr. Adams. One additional matter is that they also retained in their
possession a number of documents, personal documents of my own,
which I was taking to Dennis Creedon at the Bureau of Indian Affairs
building relating to the House Appropriations investigation of Fed-
eral programing for Indians, the involvement and residential back-
ground of participants in the trail of broken treaties. They took a list
of some several hundred names of people involved in the trail of
broken treaties, and took this type of information— which on a dif-
ferent area of concern we had promised to congressional committees
that were investigating the trail of broken treaties in the Bureau of
Indian Affairs — and they continue to possess those as well.
Other areas which they did pass up was like the accounting of
$66,650 that was given the trail of broken treaties caravans to return
from Washington, D.C. last November. They did not take that but
they took the other information I was supplying to the House investi-
gating and surveys team from the Appropriations Committee.
Senator Hart. Did I understand you to sav that there were some
600 or 700 paintings with an estimated average value of $1,000 each ?
Was that a fact or was that what the Government was saying?
Mr. Adams. That was not factual at all. And these illegible, allegedly
illegible, papers that went to Mr. Hyten through the mail demon-
strated the fact that the prices on paintings was substantially less than
that claimed when this public relations effort was going on to develop
adverse attitudes toward Indians who were in the BIA building.
Additionally, another document that the FBI took from me is a
letter to a company in London that the Bureau was telling them that
they had to pay for certain matters that they had on loan and it wasn't
up to theni to wait for their insurance companv to act but to provide
compensation. And no public mention has been made of these pieces
of arh that were lost in London. Psut I r.m certain that they were just
added to the inventory that was charged against the Indians who took
over the BIA building last November.
Senator Hart. You were present in the room, were you not,
Mr. Adams, when Mr. Jack Anderson and Mr. Les "Wliitten were
testifying ?
Mr. Adams. I did not hear Mr. Anderson's statement. I heard
Mr. Whitten's and I heard the questioning afterward.
533
Senator Hart. With respect to events described in the testimony of
Mr. A'\niitten, and raised in the questions, do you have any corrections
or modifications to make ?
jMr. Adams. I think I cLarified that the boxes were going to the FBI,
and just to be shown to Mr. Creedon in the context of the investigation
that he is conducting, and then to be called into the FBI and just let
them pick them up there. There wasn't an intention to turn these over
to Mr. Creedon, but let him observe that they were being returned as
well as, if he wanted to, the nature of their contents.
Now, you see, just prior to that, or, well, in mid- January, Congress-
woman Julia Butler Hansen had shown me this letter of a number of
Congressmen to Appropriations chairman, Mr. Mahon, and it showed
the specific areas of interest that the Appropriations Committee
wanted this survey team to examine into, and one related to missing
properties and their nature and their return, level of return, and what
their impact would be. And so I thought that this was in the context
of that investigation, and rather than just be salted away forever with
the FBI that the committee or its stafi' should have a chance to see
them then as well. I got a mental inventory of the contents of the boxes
and only I would be able to affirm or deny what had come in and what
still remained out as far as I can remember.
Senator Hart. So that you would not be left simply to be believed
by reciting what you had turned over ?
Mr. Adams. Yes.
Senator Hart. Your purpose was to insure that the congressional
investigating committee, represented b}^ its staff counsel, would see the
materials as you were in the process of returning them to the Bureau,
is that correct ?
Mr. Adams. Yes ; like there would be no question of their legibility
or whatever, or their existence.
Senator Hart. With respect to specific matters testified to by Mr.
Whitten, are you in agreement with his description, explanations, and
characterizations ?
Mr. Adams. Generally, I think frequently, you know, like he might
be inclined to guess at what was in my mind at different points in time.
I mean like why was I writing this name on all three boxes and thf)t
was just to maintain an identification if they had remained there for
any length of time.
Senator Hart. I think your testimony is most useful. You have been
a very impressive witness.
Mr. Adams. Senator, I would hope that when Mr. Gray comes back
this committee might learn, if Mr. Gray, if confirmed, would offer to
come before certain of the other hearings that will be held relating to
Indian affairs — and particularly in the areas of the implementation of
the 1968 Bill of Rights for Indians, as well as some of the law enforce-
ment questions that will be examined by certain other committees of
Congress.
Senator Hart. I think I can promise you that the committee will
ask that. Knowing Senator Ervin's concern that Indian rights have
substance rather than just promise, I would anticipate that if he is
present he will make that inquiry himself. If he is not, I will.
Mr. Adams. Thank you.
Senator Hart. Thank .you very much.
534
Mr. Adams. May I offer just two other things for you ?
Senator Hart. Yes; if you will just identify them as you turn them
over.
Mr. Adams. One is a background statement on myself and the other
is a press statement of February 7, 19T3, relating to the arrest actions
and various items taken from my possession by the FBI.
Senator Hart. Thank you. They will be received and printed.
[The documents referred to follow :]
ExPEKiENCE Background & References for Hank Adams
Age: 28.
Tribe : Assinihoine-Sioux of Fort Peck Indian Reservation, Montana.
Education: Moclips High School; University of Washington (2 years) (1963).
Recent Awards : 1971 Pluman Rights Award of National Education Association
(NEA).
Publications : YOUTH MANIFESTO ADDRESSED TO THE PRESIDENT OF
THE UNITED STATES, Macmillan Company (1970, New York) ; UN-
TITLED MANUSCRIPT to be published 1972, Holt, Rinehart & Winston ;
Editor. "The Renegade" (SATA) 19G9-1972 ; Numerous other articles, chap-
ters, and essays in books & periodicals.
nims: Production Supervisor, "AS LONG AS THE RIVERS RUN" (SAIA-
Carol Burns, 1971). Consultant, 'NOW THE BUFFALO ARE GONE"
(Thames Television, London 1969).
Job Experience :** Exectitive Director, Survival of American Indians Association
1968-1972; Consultant (and selected for staff employment) for U.S. Senator
Robert F. Kennedy, 1968; Member, National Steering Committee (12), Poor
Peoples Campaign — 1968 Chaired by Martin Luther King, succeeded by
Ralph D. Abernathy ; Director, Quileute Tribe Community Action Program
(OEO), LaPush, 1967-68: I'.S. Array ("Editor, post newspaper Ft Bel voir;
troop movement control) 196.J-67 ; Staff Student Assistant, United Scholar-
ship Service (Denver) 196.5: Research Secretary, National CongTess of Am.
Indians (Washington, D.C.) 1964-65: Special Projects Director, Nat'l Indian
Youth Council, (nationwide) 1963-67: Laborer^Choke Setter. Stream Clear-
ance Project, Quinault Reservation, 1963 ; Laborer-Sawyer-Offljearer, Cedar
Shake Mill, 1962: Fishbuyer (evening and graveyard), Quinault River,
1960-61: Clamdigger & Fisherman, Quinault Reservation, 19.57-1961; Shed
and Field Digger Laborer, Bulb Farms, Sumner-Puyallup, 1957-60; Self-
supporting berry, cherry, bean & cucumber picker, 1949-1958.
Advisory & Consultant Work Positions : Screening & Review. Episcopal Church
N"W" Gen'l Convention Youth Program 1971-72 ; Screening & Review. Epii^co-
pal Church nat'l Gen'l Convention Special Programs 1970: Presiding Bish-
op's Episcopal Church ad hoe Com. on Indian Involvement : Bi-Lingual
Education Project, Yeshiva University, New York, 1967; National Indian
Advisory Board, OEO UPWARD BOT^ND program. 1965-1968: Multi-
organization Council on Native American Educational Opportunities. 1964-
6.5": Task Force Development. Citizen's Advocate Center (Wn, D.C.) 1967-68;
Community celebrations & Taholah Youth Fraternity, Quinault Res., 1960-
19&4. 1972 — Congressional Candidate (Rep.) Primary election (Appr. 40%
of vote) .
"Statement of Hank Adams, Principal Negotiator, Trail of Broken Treaties
Caravan
The criminal methods. Gestapo tactics, and Watergate Affair mentality relied
Tipon by the FBI — ^^in breaking into my apartment to steal various of my personal
possessions and working materials — apparently represent the character of uncon-
scionable and revolting actions which the Administration envisions as the stand-
ard for its "Spirit of '76".
**The nature of work in the various positions of recent years have ranged from research
and report -writing, writinsr for publication, fund-raising, project development, action orga-
nizing, preparing congressional testimony, para-professional legal work, legal research and
briefing and argument, public relations, supervising work activity and employment of other
laborers and students, and assisting various Indian individuals, families, communities and
tribal governments.
535
Among the items stolen from me iby the FBI were :
1. An IBM Selectric tyit^writer given to SAIA in 1968, wliieli we had
repaired and reconditioned to make workable by IBM repairmen at Olympia,
Washington, at an initial cost of $250.00, plus subsequent repair costs.
2. Private documents, records, publications, and papers, relating to the
Trail of Broken Treaties and its participants, which were being made
available to the U.S. House Appropriations Committee's survey and investi-
gative staff.
3. Source materials secured or furnished me from several sources for
writing an extensive draft for a final report of the "American Indian Im-
pact Survey Team", organized last November with Peter MacDonald (Navajo
Chairman) as survey team chairman and Bill Farrison (Papago) as working
Vice Chairman.
None of these items, nor other papers taken, were improperly nor unlawfully in
my possession. Thousands of other papers were left in my apartment or posses-
sion. A search warrant was not obtained, nor its "justification" contrived, until
after the eight-iiour police foray tlu-ough my apartment was completed.
Among the items taken by the FBI were documents including such information
as:
1. A statement prepared by Interior Department staff members which states
that Interior officials were notifieil that angry Indians had decided to "take over
the BIA" nearly an hour before the TBT arrived at the building left in shambles
7 days later. According to the paper. Sgt. Ealph Smith of the Interior Park
Police (phone 426-6817) "radioed this information to his superiors" at that time.
Another statement taken provides the information that Sgt. Smith was pro-
tected by myself from Indian security forces, who had moved to take away his
radio and police equipment, to permit him to make radio calls and act otherwise
without interferences on the morning of November 2, li)72.
2. An HEW Social Rehabilitation Service's statement criticizing federal re-
gional ization and state administration of certain services and programs — allow-
ing "legalized starvation and the deprivation of rights to life" for Indian child-
ren ; failing to require States' conformity to federal standards in welfare assist-
am.'e programs, such as Aid to Families with Dependent Children; not acting to
disallow the dissipation of assistance benefits by uncontrolled and excessive
food prices on Indian reservations (noting that some Trading Posts on the
Navajo Reservation were surveyed and found to be 3 times as high as food com-
modity prices at Safeways in Albuquerque) ; among other deficiencies and needs
for other corrective actions cited.
3. A copy of a letter from former Commissioner of Indian Affairs Louis R. Bruce
to the Director of the Office of Minority Business Enterprises (OMBE) charging
that Indian people were not securing fair and equitable assistances from OMBE,
primarily becaiise of a failure and refusal of O^IBE to cooperate and coordinate
activities, or have continuing relations, with BIA — thereby keeping the develop-
ment of Indian-owned businesses at a minimum and far below the level of
immediately available opportunities.
4. A copy of a briefing paper to Interior and BIA personnel outlining the
neces^i-y application of the National Environmental Policy Act in the manage-
ment and leasing of Indian properties — premised uixm the asserted judgment
that the language of the Act made it mandatory for application by BIA and
Interior — before Interior assumed the position that the measure did not apply
"because tribal leaders did not want if and that "Indian lands are private
property".
5. Copies of documents detailing the suspension by BIA of tribal governments
and constitutions (A) preventing the Prairie Band of Potawatamie Indians
(Kansas) from receiving in trust a grant of 1300 acres of land, including former
college facilities, from a church group : (B) limiting the ability of Fort McDowell
Indians (Arizona) to prevent their being inundated or displaced by the reservoir
waters behind a dam, or from asserting their own rights in the matter.
6. Copies of documents relating to the expedited transfer of $70,000 in tribal
funds, following earlier transfer of $400,000 to the San Carlos Apache (New
Mexico) Tribal Council in mid and late 1072^— at a time when tribal memibers were
calling for audits and protections of all tribal funds by the federal government
in the face of information that nearly three-quarters of a million dollars in
tribal monies had reportedly been privately loaned to present and former tribal
officials, that the Tribe owed creditors and contractors nearly another half-
million, and that the Tribe was seriously threatened with bankruptcy through
unchecked mismanagement of tribal funds.
536
7. Informiitiou that the federal government — which relurned (rightly) 21,000
and 67,000 acres respectively to the Yakima WA and Warm Springs (Oregon)
Tribes to include within land bases already exceeding a million acres each —
could not prevent the displacement of the Bridgeport California Indians by a
housing development upon lands they've lived upon for most of the past cen-
tury— nor grant them rights to an available twenty acre tract of nearby surplus
land, because their eligibility can not be established in the absence of present
land ownership.
Additionally, the FBI has secured a copy of more than 400 names, ages and
addresses, of Indian persons who had come to this city with the Trail of Broken
Treaties, together with information where the other half of the participants list
could be obtained. This was to be provided to the congressional investigative staif
to disprove the erroneous statements that mostly "urban" Indians were involved,
by allowing accurate information on precise residences. It shall undoubtedly be
used as a treasure map for FBI investigations, harassment, and intimidations.
Also, the FBI did not include upon their receipts the address books of D.riiny
Pigeon and Allison Cerri which were taken from my apartment within the
course of their searciung and seizing.
I can understand the FBI agents desire to seize upon several hundred pounds
of documents in a dramatic arre.st action less than fifteen blocks before the.se
records reached their destination at the BIA — where congressional staff investi-
gator Dennis Creedon would have witnessed their return at approximately 10 :30
last Wednesday at the BIA backdoor entrance, where I planned at the same time
to call FBI Special Agent Dennis P. Hyten at 324-2010 to declare their delivery.
The FBI record of recovery of properties taken from the BIA last November
has, in the subsequent 3 months, been embarrassingly dismal. After an auto-
mobile accident in Oklahoma, some items were recovered — as were a few others
after they surfaced in the BIA's Haskell Junior College at T^awrence, Kansas.
Other than the four occasions I had han.d or personal involvement in returning
properties quietly to the FBI here in Washington, D.C., the recovery effort has
failed. The determination that only a punitive method of recovery might be
employed has been the cau-e for failure. The government could hardly to'erate
three boxes of records pas.-ing halfway across tlie coiuitry and breaking through
their embargo against the return of properties to this city. Therefore, the arrests
of last Wednesday.
I'd point out that ijolice agencies have always liad more information about the
taking of properties and the people involved than I have had — or myself been
able to .secure. Their system of luideroover agents was. and lias been, operative
during the entire process. I was first informed about the matter by Mr. Leonard
Garment, Special Consultant to the President, on November S. lf>72. Air hough
I was advised that his reports were unfounded, I promised the White House
representatives that I would use whatever influence I might to prevent the taking
of documents and record.s — ^additionally, to undertokf^ n)y own Inquiry into the
matter, and to act to secure return of properties which might be, or have been,
taken. After those assurances, there was a concluding of negotiations and actions
which enabled the termination of the BIA occupation — without violent con-
frontation, serious injuries, or loss of life.
Sub.?equeni:ly. I have not had control over the handling or use of documents
and records, althougli I have continued to work for their return. With respect
to news reportage of their content 1ji limited nature — I supplied some news out-
lets with a number of telephone contacts in different parts of tlve country, while
supplying any number of Indians with names and telephone numbers of news
media personnel for whatever arrangements miglit be pos'^ib'e or made — again
as incident to their return — but without knowledge of or any power over any
decisions made or materializing from contacts.
I learned additional details of the taking of properties for the first time later
follo'^'ing articles written about them. At times. I have discussed the iniDortance
and significance of information contained in document copies with Les Whitten.
but have not been involved directly in providing him with stolen documents or
their copies. On occasion, T hav^' offeyi^d additional information or leads to infor-
mation not contained in missing dociiments.
I still do not know who took documents and records — and I do not know wlio
sent three boxes from Soutli Dakota. Delibei'ately, I have not sought specific
names. In communicating the general information that I would help return mate-
rials, I've indicated that I would inventory materials received which have not
been copied, for either use in news stories or for later attempts at acqui.^ition
537
under the Freedom of Information Act. Additionally, we have been concerned by
false statements made by government officials relating to the impact of '"iost"
materials — with various Tribes and projects being told that actions were being
delayed because of missing records. (The Yakima & Walker River Tribes have
made repeated statements about missing tribal records — where there is no reason
to believe that such records were affected by the BIA occupation. NCIO Executive
Director has played on the matter of lost records in threatening a juvenile reha-
bilitation center near Tucson with closure, before claiming that his i>ersonal
efforts came into play to save it.) So, inventory of documents returned without
other review or copying has been essential.
THE ARREST ACTION
Last Tuesday, I received notice that 3 packages were at a local bus station
•with a $38.50 COD charge. When Nita Collins and Johnny Arellano arrived
around 1 p.m., I gave Nita the notice and asked if she could pick them up for me.
I gave Johnny a telephone message, just before he received a repeat call asking
him to drive a student to American University for classes. Nita asked him if he
could hurry — and although she knew nothing of their content — because the
packages were "important". Shortly after that, I laid down to sleep — and did not
see Nita again until inside a jail cell the following afternoon. While I was asleep,
Nita and Johnny, the undercover policeman, picked up the packages at the bus
station, transported them to my apartment, and left them in the center of my
apartment — with Johnny doing all the handling of the boxes. When I woke up
later, the boxes were there, still sealed. I did look through all the materials, and
made mental inventory of them.
Shortly after 8 a.m. Wednesday, I called Nita Collins asking what time she
and Johnny would arrive at my apartment to go to the BIA building. She said
he was to be there by 10. I told her that was the time of the appointment with
congressional investigators, that I thought they knew that, and could she call
Johnny to get him by a little earlier since I was taking those three boxes to the
BIA for delivery to the FBI at that time. She said she didn't have a number for
Johnny, but that he would probably show up earlier anyhow.
About 8 :30 a.m., I called Les Whitten, telling him I had received three boxes
of documents and had looked through them, and that I was returning them to
the BIA and FBI at 10 :00 that morning. He asked if he could come along to do
a story, coupling it with how I was coming through on my promise to secure the
return of properties while the White House was continuing to attack and sniiie
at me privately and publicly. (I had told him of Brad Patterson's calls to
LaDonna Harris, American Indian Press Association, and other Indian organiza-
tions around town, as well as his statements to Associated Press, denying his
owTi statements to me in mid-January, as well as to attack me on other grounds.)
I told him to come along, noting that I might have a transportation problem
anyhow. He asked if the boxes would fit in his yellow Vega, describing its carry-
ing capacity. I told him we could probably use it, if my other transportation
didn't show up. He said he'd be by my apartment around 9 :30.
Shortly after 9, Les' wife Phyllis called to say that Les was on his way, but
that it would probably be a little later than 9:30 when he'd arrive. When he
did arrive, I was preparing four short paragraphs of information which I hoi>ed
he would try to fit into his article, relating to my relationship with the Trail of
Broken Treaties and the BIA occupation. (The FBI confiscated that draft
wathin thirty minutes of its writing.) Shortly before 10 a.m., I called Dennis
Creedon at the BIA building to say that I'd arrive a little late, around 10 :15,
hopefully, but not later than 10 :30. He asked if he should meet me at the back
door, and I said I'd prefer that for reasons that we need not discuss. I then
began writing the FBI agent's, office's, and phone numbers on the boxes, so
that I could call them from the phone in the BIA's entryway — and because I
knew that the FBI was requesting first examination of all properties returned.
Shortly after 10 a.m., I moved the boxes to the hall of my fifth floor apartment,
near the elevator, then putting them on it. WTien we took all three boxes off at the
first floor, Les told me where his car was parked, and when I began lifting a l)ox,
he grabbed the other side — and asked if he was certain T could "make it". ( In
mid-December. I had been in a head-on collision which totally demolished my '71
VW, and which had left me with continuing shoulder-chest-and-back pains for
some time afterward. Les was aware of this, having made an appointment for
me with his doctor in late December (which I did not keep), and had — ^like
538
many people — been concerned about my health and physical condition since the
time I was shot in the stomach in 1971 by vigilantes). I told him I conld make it,
and carried one box out to his car; he carried another; and as I returned to the
apartment door for the third, the FBI made their moves to ari-est both of us,
seeming to materialize from everywhere.
Senator Hakt. Our concliidiiifx witness this afternoon, wlio lias been
very patient, is ^^r. Edward Sclieidt, of Reston, Va.
Mr. Scheidt.
Do you swear that the testimony that you will ^ive in this proceed-
inc^ will be the trath, the whole truth, and nothing but the truth, so
help you God ?
TESTIMONT OF EDV7ARD SCHEIDT, RESTON, VA.
Mr. Scheidt. I do.
Mr. Chairman, my name is Edward Scheidt and I live in Reston, Va.
My background briefly is that for over 9,1 years I was with tlie FBI,
15 years of which I was a Special Agent in Charge. At one time or
another I was in charge of the FBI offices in Charlotte, and in New
York City, and in Detroit. After between 21 and 22 years of service in
the FBI I retired, at age 50, and went back to North Carolina where
I was commissioner of motor vehicles for 13 years, serving under four
different Governors. I became very well acquainted with one of the
distinguished members of this committee. Senator Ervin, who was
then a Supreme Court Justice in North Carolina.
I miglit add that during the time that I wns a special agent in
charge of the Detroit office of the FBI I had the pleasuie of knowing
the distinguished Senator Plart. I read in tlie paper the other day
where he spoke of his limited experience as a j^rosecutor. I think he
was beinjr entirely too modest, because I can tell vou that the agents
of the FBI in Detroit thouglit he was a top notch U.S. Attorney.
Senator Hart. I am glad you said that. Thanlc you. [Laughter.]
Anv time we won it was because your men had done such a good job
we couldn't lose.
Mr. Scheidt. Well, I felt that you were marvelous then and I think
you still are.
I am in somewhat of a dilemma. The material that I have to present
might take as much as an hour. I am perfectly willing to take that
hour now, or to come back later, whichever the committee prefers.
Senator Hart. Are you retired literally? Could you conveniently
come in ?
Mr. Scheidt. Yes, indeed ; T would be pleased to.
Senator Hart. Fine. T don't want to ask you to repeat what a great
prosecutor I was, but I would like to have my colleagues hear the
material.
'Mr. Scheidt. I might say. Senator, that what T have to sav is in a
snirit of hel?:) fulness to the committee. I have certain thoughts and
ideas which I sincerely believe might be of value to this committee in
its important deliberations here.
Senator Hart. I know the committee will be the better for anv suff-
gestion vou have. If, in fact, it is not inconvenient for you. it would
be helpful if we do postpone it.
Mr. Scheidt. Thank you ; I'll be delighted to do so.
Senator Hart. On that basis we will recess.
539
I will pause for a moment to learn if Chairman Eastland has sug-
gested whether we will resume on Monday or on Tuesday.
Assuming power that nobody gave me, we will set it at 10 :?)0, Mon-
day morning. We will hear Mr, Scheldt. At that time I believe also we
will hear from Steve Schlossberg, general counsel of the UAW.
Thank you.
Mr. ScHEiDT. Thank you, sir.
[Whereupon, at 4 :55 p.m., the committee recessed, to reconvene on
Monday, March 12, 1973, at 10 :30 a.m.]
NOMINATION OF LOUIS PATRICK GRAY III
MONDAY, MAUCH 12, 1973
U.S. Senate,
COMMITTEEE ON THE JUDICIARY,
Washington^ D.G.
Tlie committee met, pursuant to recess, at 10 :40 a.m., in room 2228,
Dirksen Senate Office Building, Senator Philip A. Hart, presiding.
Present : Senators Plart and Cook.
Also present: John H. Holloman, chief counsel, and Francis C
Eosenberger, Thomas D. Hart, and Hite McLean, professional staff
members.
Senator Hart. The committee will be in order.
Today two witnesses are scheduled.
Mr. Scheldt has been patient with us all week and I wonder if I
could ask him to delay a little longer in order that an out-of-town
witness may testify.
Mr. Scheidt. It is all right with me. Senator.
Senator Hart. Our first witness then will be the general counsel
of the United Automobile Workers, Mr. Stephen I. Schlossberg.
The committee welcomes you, Steve.
TESTIMOITY OF STEPHEN I. SCHLOSSBERG, GENERAL COUNSEL,
UNITED AUTOMOBILE WORKERS
]Mr. Schlossberg. Thank you, Mr. Chairman.
Mr. Chairman, I appreciate very much the opportunity to appear
before you on this important matter and to state the position of the
Litemational Union, the United Automobile, Aerospace and Agri-
cultural Implement Workers of America, commonly known as the
UAW, with respect to the nomination of L. Patrick Gray to be Di-
rector of the Federal Bureau of Investigation.
The UAW is an industrial union whose members number more than
1,400,000. Our interests have never been parochial and confined to
narrow problems of self-interest. The UAW constitution and its con-
ventions have mandated the leaders of the union to take positions on
matters of general interests and to do everything in their i>ower to
improve the quality of life, not only for the members of the UAW,
but also for the whole society. Certainly, as a responsible institution
in this society we are concerned about the quality of justice in America.
In view of the unique and sensitive position of the Federal Bureau
of Investigation in our national life, we are naturally concerned about
who shall be the Director and the course this crucial bureau will pur-
sue in the future.
(541)
91-331—73 35
542
We do not appear here at this time to ask this distinguished com-
mittee either to consent to this nomination or to reject it. We do want
to raise a number of matters we consider significant and important and
to make a procedural recommendation to this committee.
Even though the Senate has had an advise and consent role w^itli
respect to the nomination of the Director of the FBI only since 1968,
the Congress has alwaj^s had the duty of overseeing the operation of
this important Bureau and of approving its budget. We suggest that
the failure of Congress over the years to scrutinize more carefully the
operation of the Bureau is understandable in view of the strong per-
sonality who headed it for so many yeare.
Now, however, when the President has nominated a new Director,
not a caretaker but a new Director, it seems entirely proper for this
committee to inquire into the past operations of the Bureau, as well as
the past record of the nominee, and in advising and consenting on this
important post try to project what kind of FBI it can expect under
a new Director.
I am going to deviate now, Mr. Chairman, if you please, from the
text of my prepared statement to bring to the attention of the com-
mittee a speech made by L. Patrick Gray III less than 1-year ago.
On March 24, 1972, when this nominee was Assistant Attorney
General of the United States, he made a speech before the Wage-Price
Control Institute. I have given copies of this speech to the committee
and I ask that it be inserted into the record.
Senator Hart. Without objection.
[The address referred to follows :]
Remarks by L. Patrick Gray TII, Assi.stant Attorney General, Civil Division,
AND Deputy Attorney General Designate, Department of Justice
Nearly a hunflrerl years ago a jouraalist was interviewing the railroad mag-
nate, William Vanderbilt, about his plans for discontinuing a rail line.
"And what about the public?" asked the reporter.
"The public be damned !" answered Vanderbilt.
As you can see, this was well before the term "public relations" had been
invented. And as you can imagine, this startling statement stirred a tremendous
hue and cry from the enemies of American business. They said it simply ex-
pressed what everyone knew — ^that businessmen were running roughshod over
the public interest. Among those who were loudest in their denunciations were
leaders of the labor movement.
In the last three days the Nation has been treated to another spectacle of the
same type. When the Pay Board made a decision that the AFL-CIO didn't like,
its president and three other labor members of the Board walked out.
Public relations has come a long way since William Vanderbilt, and George
Meany did not say, "the public be damned!" But that is the full and complete
meaning of his action. Not since the so-called robber barons of the lOth Century
has a special interest group demonstrated such blatant contempt for the public
interest. Let's look at the record.
Our most recent inflationai-y spiral began in 1964. For the first five years of this
raging inflation, a Democratic administration was in Washington. What did it
do to stop this inflation? Nothing. During that same five years, what did the
leaders of organized labor demand of that Democratic administration, in order
to stop inflation? Nothing.
.Tust three years ago, after President Nixon took office, he applied his
existing powers to try and stop inflation. As you know, these were indirect
powers — credit restrictions, the tax structure, and so forth. He also called upon
lousiness and labor for voluntary efforts in controlling inflation. What was the
result?
543
In general, organized labor continued to make strong and inflationary demands
at the bargaining table. And in too many instances, business gave in to these
demands and simply passed the added costs on to the consumer, in the form
of higher prices.
Lest I be accused of coming here just to blame organized labor for the in-
flationary spiral, let's recognize that it takes two sides to negotiate at the
bargaining table and two sides to sign a contract. If labor was wrong in demand-
ing inflationary increases, business was wrong in granting them.
The one side that wasn't represented at the bargaining table was the side of
the consumer. He is the one who, in the end, had to pay the price.
Now, as you know, President Nixon preferred not to apply direct controls to
the economy, if it could be avoided. He knew that such controls can stifle our
free and competitive economy. He had hoped that inflation would be curbed by
indirect and voluntary means. And, in fact, there was some reduction in the
rate of inflation. But by mid-1971 the Nixon administration realized it was not
enough.
All this time the Democrats — those whose party had done nothing to stop the
inflationary spiral in the first five years — were blaming the President and wem
calling for more drastic and direct controls.
Leaders of organized labor, led by George Meany, were calling for direct COU'
trols. They said that was the only way the President could curb inflation.
Then on August 15, President Nixon announced his wage-price freeze. Well,
George Meany said that w'asn't exactly what he had in mind. He was in favor
of freezing prices, but not wages. And since public relations has become an im-
portant factor since the days of William Vanderbilt, Mr. Meany didn't say,
"The public be damned." No — instead he claimed that labor was being asked to
bear the brunt of the fight against inflation, and he threatened to ignore the
wage freeze.
Then, after the 90-day freeze the President established Phase II — the economic
stabilization program. It embodied the most scrupulous attempt to administer
wage and price controls tliat would be fair to all concerned. Not since tlie
national crisis of World War II was everybody in America so united in one
cause — the need to buckle down — ^pull together and break the back of the
psychological inflation as well as the real inflation.
Everybody, that is, except the likes of George Meany. At first he hesitated to
serve on the Pay Board until his terms were met. Then he reluctantly agreed,
saying, in efilect, that he would do so only as long as it served labor's interest
to do so.
While I am not here to throw bouquets at business, I must observe that the
management representatives on the Pay Board did not come in with their fingers
crossed. They did not hang onto their hats and keep one foot outside the door.
Now, let's look at the record of the Pay -Board and see whether its perfonn-
ance justified George Meany's fears.
Out of 54 votes on major issues iby the Pay Board, more than half were unani-
mous. The majority voted the way the labor members voted 30 times.
Let's cut it another way. Tlie Pay Board agreed that 5.5 percent was a per-
missible increase, considering productivity gains, and that 7 percent was reason-
able where there was some "catching up" to do. Yet in the soft coal settlement
the Board agreed to 15 percent. In the aerospace settlement it agreed to 8.3 per-
cent plus an additional 4 percent in tlie second year. The L'nited Transportation
Union got 10 percent.
The full Pay Board has acted upon eight major wage cases. In five of these the
position of the labor members prevailed.
Does this record look like the Pay Board was stacked against organized
labor?
Meanwhile, what was the Price Commission doing?
The weighted average price increase it has allowed — and hear in mind it has
denied any increase at all in a number of cases- — ^has been 3.16 percent for
applicable sales, and 1.55 percent for total revenues. And whereas the Bay Board
allowed the soft coal workers a 15 percent wage increase, the Price Commission
established a policy that even in such cases, no more than a 5.5 percent
increase in wages would be accepted as allowable cost to be passed on as a price
increase.
How has all this affected the cost of living? The President has indicated that
his goal is to get the cost of liWng index down to an annual increase of 2 to 3
percent. Since the start of economic controls last August, the consumer price
index has increased at an annual rate of just over 3 percent.
544
It is true that here and there you can find prices that liave exceeded tliis goal.
Mr. Meany's game is to pick and choose such exceptions — food prices, for ex-
ample — ^to ti-y and huild a case.
It is also a fact that the cost of living index, long since computed by the
Bureau of Labor Statistics to reflect the cost of living for the average Ainerican
family, .shows only a very small increase since last November despite the jump
last month in the consumer price index, three quarters of which was due to the
rise in food prices.
This is an increase below the average w^age increases permitted by the pay
board.
This is an increase far below the higher wage increases allowed by the board.
The fact is that retail food prices have risen just one-tenth of 1 i>ercent on
the average in the last six months. It is also a fact that only 16 percent of the
typical family's income goes for food today compared with 28 percent in 1952.
Now comes the dock strike settlement, in which the Pay Board is asked to
approve a whopping 20.6 percent increase.
As you know, this followed a dispute that kept West Coast ports and ship-
ping tied up for many months. This strike was terminated when the
President invoked the Taft-Hartley Act on the 9Sth day, and a court ordered
the strikers back to work 112 days after the strike began. The cooling off period
expired after SO days, and the dock workers were out again. They did not return
again until 35 days had elapsed.
Reasonable observers declared that if the Pay Board caved in and allowed
anything like the 20.6 percent increase, the whole economic stabilization pro-
gram was liable to go down the drainpipe.
When it's decision of 14.9 percent was announced it created a furor — but not
just on the side of labor. Those who had feared the Pay Board would "cave in"
were just as adamant on the other side. They pointed out that the dock workers
increase was comparable to the soft coal increase that had already beeu criticized
as excessive. But Mr. Meany and three other labor leaders afiiliated with the
AFL-CIO walked out, hurling thunderbolts over their shoulders.
As he had warned, Mr. Meany had been willing to stay on as long as things
were generally going his way, but when an important decision went the other
way, he picked up his marbles and went home.
Of course, he invoked the help of public relations and put out an explanation
that took nearly half a page of newsi>aper space. He didn't say, "The public be
damned." But he did use as one of his excuses that he and his colleagues had
"a deep disbelief in and distrust of the aims and purposes of this administration's
economic and social policies * * *."
I would like to be charitable and believe that this, and not just pure narrow
self-interest, explains Mr. Meany's problem. He doesn't trust this administration,
so he pulls out of the game and goes home.
It's not really a question of trust wdth Mr. Meany — ^it's a question of power —
the raw and unbridled power to pull the strings and manipulate to achieve his
own objectives and the public be damned.
But when Mr. Meany says that he doesn't trust the administration, the
trouble is that at present it's the only administraion we have.
At the present time this is the administration in office and headed by a
President elected by the people of the United States.
At the present time it is charged with the responsibility of conducting the
affairs of the Government, and it's the only Government we have.
It is administering the only economic stabilization program that Congress
has authorized.
At the present time it's the only weapon the Nation has that can win the battle
against inflation.
So even if Mr. Meany isn't satisfied with this game, the fact is that it's the
only game in town.
Walking out on that game is an indulgence in personal prejudice that the rest
of us can't allow ourselves to enjoy.
In my opinion the American labor movement has the right to expect reasoned
and responsible leadership from its chieftans. Instead it has now received a
Ijuckshot load of irrational irresponsibility.
I believe that the workingman and his family have suffered heavily under
the inflationary scourge. They have seen their wages increase but their purchas-
ing power has declined. They deserve the responsible representation that the
AFL-CIO potentates may have been able to provide had they placed public
interest above self-interest and raw power.
I believe that the overwhelming majority of Americans, including many mem-
bers of organized labor, will applaud the fairness, the courage and the perform-
545
I believe that the overwhelming majority of Americans recognize the need for
the economic stabilization program, and for all Americans to put national interest
ahead of special interest in supporting that progi^am.
I believe that the overwhelming majority of Americans do not allow them-
selves to be ruled by suspicion and distrust. They know that if we are to continue
to accomplish great things as a Nation, we must maintain confidence in each
other and in the leaders we elect.
I predict that, together, we Americans will beat this specter called inflation —
with or v.ithout Mr. Meany.
In the process we will validate an article of faith — not "the public be damned,"
but "the public be served."
Mr. ScHLOSSBERG. I Will iiot rcacl the. whole speecli, but will only call
attention to some parts of the sj^eech and to the tenor of the s])eech, and
call to the attention of this committee what I coiisider to bo an nn-
fortimate aspect of this speech made by the Assistant Attorney Gren-
eral, who is now under consideration as the head of such a legendary
law enforcement agency as the FBI.
Less than 1 year ago ]Mr. Gray, as Assistant Attorney General for the
United States in charge of the Civil Division, made this speech to a
wage-price control workshop, and at that time, I might add, he and
I were lead counsel in a piece of litigation affecting the subject matter
of this speech.
As this committee may Iniow, and may take notice of, the UAW
sued the Boldt pay board over its actions in the Aerosjyace case and we
had been in litigation, Mr. Gray as the chief counsel for one side, the
Government side, and I as the chief counsel on the other side, some
71/^ weeks when he made this speech. That is significant for a
number of reasons. As a lawyer, I deplore the practice of trying law-
suits and attacldng the motives of opponents before public groups
rather than in the court when you are litigating. I also deplore in-
accuracies, which were later proven to be inaccuracies, by the Federal
district court in the District of Columbia and I will call attention to
one particular inaccuracy in this speech.
On the first page of this speech, ]Mr. Gray refers to the robber barons
of the last centui^ and particularly to the famous quote from Com-
modore Vanderbiit, "The public be damned." Then ho talks about
the exodus of the resjionsible labor leaders of this country from the
Pay Board in protest against the policies of the administration at
that time, and he said, and I quote :
In the last three days the Nation has been treated to another spectacle of the
same type.
He is referring to the "public be damned" attitude.
When the Pay Board made a decision that the AFLhCIO did not like, its Presi-
dent and three other labor members of the Board walked out.
Further down the page he says :
Not since the so-called robber barons of the 19th century has a special interest
group demonstrated such blatant contempt for the public interest.
Later he talks about —
Organized labor continued to make strong
Senator Cook. Can you give me the page, please ?
Mr, ScHLOssBERG. On page 3 of the speech. Senator Cook.
Senator Cook. Thank you.
546
Mr. Sciiijossberg. At the bottom of the page he says :
In general, organized labor continued to make strong and inflationary de-
mands at the bargaining table.
I note parenthetically that the UAW has been praised not only by
employer members of the Pay Board but by public members of the
Pay Board for having made responsible noninflationary contracts long
before any wage and price controls were in existence.
I turn now to page 5 of the speech. At the bottom of the page, Sena-
tor Cook, he says :
Leaders of organized labor, led by George Meany, were calling for direct
controls. They said that was the only way the President could curb inflation.
At this point he is talking about the Congress, and the Democrats
in particular, blaming the President and asking for more drastic and
direct controls, I point out again, as an inaccuracy, that the UAW is
publicly on record as not having been one of those who called for
direct controls. Indeed, we opposed the carte blanche that was given
to the President by the Democratic-controlled Congress in the first
Economic Stabilization Act.
He then says on page 6, at the top of the page :
Then on August l.j, President Nixon announced his wage-price freeze. Well,
George Meany said that wasn't exactly what he had in mind. He was in favor
of freezing prices, but not wages.
I do not pretend to speak for President ]Meany. I do think he is a
great American and I know he did not say that and he did not mean
that. As I remember his public statements, which are well laid out in
tlie record of congressional committee hearings and are known by the
administration and by the routine partisans who make speeches for
the administration's whole program, they are based on equality of
sacrifice. He said that labor would be willing to suffer the stringencies
of wage controls if there were truly price and profit controls. I think
that is an injustice to ]Mr. JMeany, but I do not pretend to defend him
and I say it only as a member of organized labor who has some asso-
ciation with the problem.
At the bottom of that page, on page 6, he says :
Not since the national crisis of World War II was everybody in America so
united in one cause.
He is talking about the fight against inflation. Then he says, after
having compared this to a war in which the national life is at stake
and really bringing in the question of patriotism :
Everybody, that is, except the likes of George Meany. At first he hesitated to
serve on the Pay Board until his terms were met. Then he reluctantly agreed,
saying, in effect, that he would do so only as long as it served labor's interest to
do so.
His next paragraph is interesting :
While I am not here to throw houquets at (business, I must observe that the
management representatives on the Pay Board did not come in with their fingers
crossed. They did not hang on to their hats and keep one foot outside the door.
I suggest there is good reason for that because the so-called public
members and the management members ran the Pay Board and they
knew it from the verv beginning.
547
Turning now to page 8, and this is the part of the speech that, be-
cause of my personal involvement, particularly irritates me, in the
next to the last sentence of the last paragraph on page 8, he says, "In
the aerospace settlement it"— meaning the Pay Board — "agreed to 8.3
percent" — he means for a first-year increase — "plus an additional 4 per-
cent in the second year."
Now, Mr. Chairman, at that very moment we were litigating, the
U AW was litigating, in a case known as UA W v. Boldt^ the very ques-
tion of the aerospace settlement, in the District Court for the District
of Columbia.
Mr. Gray was lead counsel on the other side. Our complaint, which
was a lengthy complaint, based itself almost entirely on count 1, which
said the Pay Board had erred so grievously in the aerospace contract
that they had given us no first-year increase, none whatsoever, that
they had given us a wage increase of zero percent, and that they had
taken an old contract and called it a first-year increase. That case
is now in the emergency court of appeals and I think this committee
should know, despite what Mr. Gray says here, that Judge George L.
Hart of the District Court for the District of Columbia remanded
that case to the Pay Board to consider what the first-year increase
should be because the money they had given us as a first-year increase
was old money due under a contract which was not covered by wage
controls. In other words, as the case now stands, and I hasten to add
it is pending a decision in the emergency court of appeals, we got zero
percent for the aerospace workers for the first year and jNIr. Gray at
least knew our contention.
What really disturbs me, Mr. Chairman, about that speech is the
tendency to stereotype, to class all labor leaders together and to think
of them derogatorily.
I have read the reports o'f Mr. Gray's testimony before this com-
mittee and I was struck with one remark. In dealing with Mr. Dean
and in dealing with the Nixon administration, Mr. Gray told this
committee that he worked mider a presumption of regularity. I won-
der if so partisan, so vicious, a speech as this against the leadei*s of
American labor means that he, as Director of the FBI, would work
with a presumption of irregularity when he was dealing with the
members of organized labor and their leaders. I wonder if a person
so ]~>artisan at the time he was litigating and holding such a high
position in the Government is the proper man to head this great
Bureau, the FBI.
I have, Mr. Chairman, an editorial from the Detroit Free Press, an
independent Knight newspaper in Detroit, which was written on
Thui'sday last, March 8, and I will submit this to the committee and
ask that it be included with my statement.
Senator Hart. It will be printed.
[The editorial referred to follows :]
[From the Detroit Free Press, Mar. S, 1973]
Partisanship Taints Gray As Permanent FBI Head as We See It
(By John S. Kuight)
iFBI charges, revealed this week, that officials of President Nixon's re-election
campaign sent "agents on fishing exijeditious to keep them from getting the
truth" about the Watergate break-in and bugging reflect poorly on both the
President and his choice for director of the FBI, L. Patrick Gray.
548
Whether the interference came from "campaign officials" or "White House
officials" makes little difference. The Px-esiclent 'bears ultimate responsibility for
both, and the way the Nixon oampaign was run, you couldn't tell them apart
anyway.
And Gray was responsible for telling the officials, whoever they were, to keep
away from the investigation. We recognize that it may be difficult for a presi-
dential appointee to defy the man who appointed him, but that's sometimes his
job, and he must either do it or admit he isn't fit for the position.
Gray apparently had no desire, or at least no stomach, to go against the wishes
of the President.
Gray allowed presidential counsel John W. Dean to sit in on FBI interviev\'S
with White House staffers. It isn't likely that any of these loyalists would have
told tales on their bosses, but Dean's presence virtually assured tight lips. Any-
thing said would certainly have reached the President or the appropriate mem-
ber of the palace guard through Dean.
The acting FBI director said he had no choice but to allow Dean to sit in
because that w^as the White House's desire. Bnnk. The head of the FBI must be
a person with the backbone to do what he thinks is right regardless of the
consequences.
The President may fire him, but no qualified FBI director would let the Presi-
dent or anyone else push him around.
The Senate is now^ considering Gray's nomination as permanent director of the
biireau, and confirmation appears likely. But the Senate should carefully weigh
the consequences of a possible Gray appointment.
Gray's actions, not only in the Watergate investigation, but in other events
leading up to last fall's election, make clMir the fact that he is a partisan Re-
publican. It is reasonable, of course, to expect a Republican President to appoint
Republicans.
But an FBI director, like a Supreme Court justice, should identify with no
party after appointment, temporary or permanent. Neither justice nor law en-
forcement mixes well with politics. Departmental morale and public confidence
are both damaged iby the knowledge that politics may influence policy.
It's a cinch, if Gray is confirmed, that he will be replaced by the next Demo-
cratic President, which could lead to FBI directors coming and going through a
revolving door.
We would not exTect, and would not want, the next FBI director to match the
48-year tenure of his predec-essor, J. Edgar Hoover. But we would hope that he
could come close to matching Hoover's record for staying out of the partisan
arena. L. Patrick Gray cannot.
Mr. ScHLOssBERG. I woulcl like to read the last paragraphs of that
editorial.
Gray's actions, not only in the Watergate investigation, but in other events
leading up to last fall's election, make clear the fact that he is a partisan Repu-
blican. It is reasonable, of course, to expect a Republican President to appoint
Republicans.
But an FBI Director, like a Supreme Court justice, should identify with no
party after appointment, tempoi'ary or permanent. Neither justice nor law en-
forcement mixes well with politics. Departmental morale and public confidence
are both damaged by the knowledge that politics may influence policy.
It's a cinch, if Gray is confirmed, that he will be replaced by the next Demo-
cratic President, which could lead to FBI directors coming and going through
a revolving door.
We would not expect, and would not want, the next FBI Director to match
the 48-year tenure of his predecessor, J. Edgar Hoover. But we would hope that
he could come close to matching Hoover's record for staying out of the partisan
arena. L. Patrick Gray cannot.
Mr, Sghlossberg. The FBI is an almost legendary law enforcement
agency. It is essential in a democratic society that such an instrument
be kept free from politicalization. For if the head of the FBI, with
tremendous power, funds, and network of agents, becomes a partisan
political figure using the awesome apparatus under his control to fur-
ther the political aims of a President, the democratic society is in
danger.
549
Daniel Webster has said :
Justice is the greatest interest of man on earth. It is the ligament that holds
civilized beings and civilized natures together.
And as Costa Gavres, the motion picture director who gave us the
movie "Z," said:
Official injustice is the greatest of all violence, because that's where violence
begins * * * always from injustice. And the worst is injustice in the name of
justice.
We would hope the committee would inquire further of this nominee,
in view of his present role as Acting Director of the FBI, along the
following general lines :
1. ^Vliat is the role of informers in the Bureau's operation? How
are they paid, recruited, and used ? Are particular areas of American
life more infiltrated with professional informers than others ? Is there
special emphasis on certain civil rights or political groups ?
2. What of the wiretapping activities of the Bureau ? What kinds
of politicians, newsmen, officials and others have been wiretapped?
Are the pronouncements of the Supreme Court in this area of the
law being observed in letter and in spirit ?
3. What has the Acting Director ordered done with the FBI's data
bank? What are his policies as to the dissemination of materials in
the FBI files?
■1. Is there a different standard in the Bureau for dealing with citi-
zens from diverse walks of life and different races ?
5. ^Vhat is the Acting Director's record with respect to his views
for the future in this area ?
6. How about cooperation with local and State police forces — what
is the record and what are future plans ?
7. How does the Acting Director of the Bureau see his duties with
respect to violations of federally protected civil rights and civil
liberties ?
Turning now to matters particularly germane with respect to this
nominee, we suggest that further study is in order in connection with
this nominee's role in the last national election and his direction of the
Agency during the campaign.
How well did the FBI under Mr. Gray perform the sensitive and
important task of investigating the jDolitical sabotage, wiretapping,
burglar}^, and espionage alleged to have occurred during the last
election campaign ?
Walter Lippman once said :
In the democracies that are foundering, and there are many of them, the
underlying bonds have been ruptured which hold men together through all
their differences in one community. The parties deny the good faith and loyalty
of the opposition. Partisanship is a license to outlaw and ruin political 013-
poneuts. When such a rupture of faith and confidence has occurred, democratic
government and free institutions are no longer workable.
Fi-ee men have found no alternative to tolerance for opposing political ideas.
There is the beginning of the end of liberty when a difference of opinion becomes
confused with treason or disloyalty. The strength of the parliamentary method
is in the contest for men's hearts and minds, with hoth majority and minority
content to abide the result. Once the power of government is used to defame
the character of public men and so crash the opposition, the parliamentary sys-
tem begins to crumble and the seeds of dictatorship are sown.
!N"ow, we are certain that this committee takes seriously all allega-
tions of political sabotage and espionage. Indeed, we expect that
550
tliouglitful and fair persons of all political persnasions are disturbed
by the disclosures and the allegations of misconduct growing out of
the Presidential election. Based on our study of the answers Mr, Gray
has already given this committee, and reports in the press with respect
to the FBI performance in this area, we suggest the committee might
wish to explore more thoroughl}^, among others, these areas of inquiry :
1. Where allegations were made that T\^iite House personnel was
involved in "Watergate and related matters, was it proper to turn over
FBI files to the "VAliite House? I refer, of course, to Mr. Dean. What
will be the future policy in such cases ?
2. Where a witness is reported to have been coached on the basis
of FBI files prior to his grand jury appearance, was it proper to accept
the mere assertion of one person, again Mr. Dean, that the witness
had not been shown the files by him and not to investigate further?
3. AVhere a top campaign official and former Assistant Attorney
General, I refer to Mr. Mardian, is alleged to have engaged in massive
destruction of campaign finance documents, was it proper to drop
the matter because of the simple assertion of an attorney-client
privilege ?
4. 'W'iiere FBI agents recommend the questioning of the wife of a
former Attorney General, should the Acting Director decline to follow
through because the husband objected to the interrogation? I refer, of
course, to Mrs. IMitchell.
"Wlio concluded that no FBI investigation should be made of certain
acts of political sabotage, apparently not directly connected with the
Watergate burglar}^ and on what basis ?
I turn now to highly publicized reports of FBI involvement in
partisan political activity during the recent elections.
1. Were FBI crime statistics and derogatory information and other
information supplied to the White House supplied to the Nixon cam-
paign apparatus for political use, and if so is not the Acting Director
responsible for the use of FBI statistics and material from FBI files
in a political campaign by a partisan political outfit ?
What is the propriety of the Acting Director making speeches
around the count ly during the political campaign? Have the speeches
been analyzed? '\^%o scheduled the speeches? Are there FBI files,
correspondence, and other material, which might show who arranged
the speeches ? How did the Acting Director tra^^^el to and from these
speeches? Did he meet with any campaign officials on these trips?
I was particularly impressed with the committee's exploration of the
Cleveland speech, and as I recall the testimony on the Cleveland speech
there first was Mr. Gray's recollection of an independent invitation to
make a speech in Cleveland and then that turned out not to be true.
I understand Mr. Gray said to this committee that the speech had
not been cleared with the White House or with the committee to re-
elect the President. But I suggest to you, ]Mr. Chairman, that it might
be proper to find out what contacts were made with people in either
the Wliite House or the committee to reelect the President, w^ith Mr.
Gray's staff, with his speech writers, what input went into the FBI
before the Gray speech in Cleveland which was so important to the
Nixon political campaign.
We respectfiTlly suggest that this record is far from complete. More
in-depth investigation is required. I hasten to add: there are surely
551
areas of inquiry which might tend to show the wisdom of the confirma-
tion of this nominee. Those areas also need development.
Doubtless Mr. Gray is an efficient and able administrator. Surely
the committee will want to explore how well he has dealt with the
permanent staff and the policies of the FBI since he took over as
Acting Director. Perhaps by training or experience he is uniquely
qualified in this law enforcement position. The press has reported that
Mr. Gray has tried somewhat to "open up" the FBI. I believe that he
ordered a search for "secret files" and I believe he did that his first
week in office. He is reported to have announced an affirmative recruit-
ment program for women and minorities. Certainly if he has done these
things, we would applaud him for them as I assume this committee
would also. I do not know the full facts with respect to these reports
but they could be properly developed by this committee.
I come now to the UAW's recommendation to this conTinittee.
We are pleased to note that the Senate has established a select com-
mittee to investigate the "Watergate affair. That committee will be
chaired by one of the distinguished members of this committee, Sena-
tor Sam Ervin.
Doubtless mider the inspired leadership of Senator Ervin that com-
mittee will thoroughly and impartially investigate all of the circum-
stances and the handling of that matter by the concerned agencies. As
a result of that committee's work, we submit, the Senate and this com-
mittee will be in a position better to evaluate the performance of the
FBI and its Acting Director in the investigation of Watergate.
Our recommendation, then, to this committee is that these hearings
on the nomination of ]\Ir. Gray be kept open until Senator Ervin's
committee has completed its work. At that time the Judiciary Com-
mittee will have before it the full record of Mr. Gray's conduct of the
investigation of that sensitive matter. Such a procedural decision
would, of course, permit IMr. Gray to continue to serve as Acting
Director and, at the same time, assui-e this committee that it will know
all the relevant facts when it reports to the Senate, so that the Senate
can perform its important advise and consent duty.
Thank you, Mr. Chairman.
Senator Hart. Thank you, JMr. Schlossberg.
Your recommendation, to hold the nomination until the Ervin com-
mittee reports, is one to which the usual response is that to do that
would involve a time period of a year or more — the Ervin committee
report is due by February 1974, I am told. Now, how do you react to
the argument that that would leave the Bureau, and specifically the
Acting Director, in one hell of a spot? He is responsible for its man-
agement and morale, and yet he does not really have his badge very
securely on.
Mr. Schlossberg. Well, Mr. Chainnan, if I may, I would suggest
that the record of Mr. Gray's caretaker appointment pretty well
answers that question.
You will recall that when President Nixon appointed ]Mr. Gray to
be Acting Director of the Bureau there was no suggestion at that time
that this might become a permanent appointment and that it might be
sent to the Senate under your power to advise and consent. As a matter
of fact, I specifically recall that it was considered an interim caretaker
552
appointment. Mr. Gray has remarked to the press, if my memory
serves mo correctly, that he received remarkable cooperation from the
Bureau, from the professionals who worked in the Bureau before his
appointment, that he had been well briefed, and that he had had
cooperation in trying to operate the Bureau. The fact that the Bureau
has operated, I assume, at some level of performance that is less than
bad, even with all this political activity that it seems to have been
involved in, indicates to me that he could continue to operate.
I would suggest, Mr. Chairman, that if the reports that I read in the
press this morning are correct, Mr. Gray's position is a great deal
more damaged by the leak from the administration that Chief Wilson
is waiting in the wings than it would be by this coimnittee's Avaiting
to hear all the facts so that it will not be embarrassed by something
that is later disclosed.
Senator Hart. I have to confess that I, as one member, have had
difficulty with the notion of attempting to hold this nomination until
the Ervin committee report comes in, for the reason I indicated, that
it leaves the Acting Director in an unsure position. Yet I do acknowl-
edge that that might be better, undesirable as it may be, than to have
us confirm and then be confronted with an Ervin committee report
that makes even more difficult his and our situation, a report that finds
perhaps a wretched performance on the part of the Bureau.
I think the Free Press editorial that you have offered for the record
makes the point that all of us, whatever our position on Mr. Gray
might be, acknowledge is critical.
Public confidence in the functioning of the Bureau must be strong,
and if there is an appearance which leads to the conclusion that there
may have been political influence in the functioning of the Agency,
there is a resulting loss of confidence. ^¥liat the Free Press suggests
is to avoid it by not confirming Mr. Gray.
Mr. ScHLOSSBERG. That is correct. That is now our position. Senator.
We believe j'ou need more information. We are not urging you at this
time to reject the nomination. We do think that it would be a serious
tactical error for this committee to act without having the full benefit
of that thorough investigation in its hands.
Let me suggest one thing. I notice that Mr. Gray has offered to make
available to Senators, not to staff but to Senators, raw files of tlie FBI.
I suggest that is really not a very material offer because most Senators
are too busy to go through raw files of the FBI. It is almost like saying
that tlie corporate shareholder who brings a stockholder's suit and
tries to see the books may look at the books himself but may not bring
in an accountant or a lawyer. That really makes the right an illusory
right. I suggest that if the only way the Judiciary Committee has the
benefit of looking at the files, and getting to the bottom of what went
on in this investigation, is by Senators themselves going over and going
through those files, without expert staff assistance, it behooves the
Judiciary Committee to wait a little and decide whether the expert
help that might come from Professor Dash and from Senator Ervin
and from some of his colleagues may not be helpful to you in this most
important nomination.
Senator Hart. I am sure that all of us would agree that the report
from Senator Ervin, prepared with the help of Professor Dash, would
be of great help to us. You cannot avoid that conclusion. The problem
553
is whether it is responsible to wait for it or not. I think a^ou have made
a very strong appeal that waiting is the prudent course.
Mr. ScHLOSSBERG. Thank you.
■Senator Hart. Senator Cook.
Senator Cook. Thank you, Senator Hart.
Mr. Schlossberg, suppose this were a nominee who had not been
Acting Director of the FBI. How could he answer your question 1
and how could he answer your question '2 ? Are these not matters to
be considered in oversight hearings ?
Mr. Schlossberg. If you will read my introduction there, Senator
Cook, I believe I made it clear
Senator Cook. I read your introduction but then I heard your ad-
denda and I think your addenda to your remarks changed the thrust
of your introduction.
Mr. Schlossberg. I am sorry.
Senator Cook. You should not be sorry, it is your testimony.
Mr. Schlossberg. I am not sorry about my testimony. I am sorry
I misled you. The premise of these lines of inquiry is his acting status.
I would agree with you that had he not been Acting Director of the
FBI these would probably be the subject of oversight hearings.
Senator Cook. Are they not still a proper matter for oversight
hearings '?
Mr. Schlossberg. I would think that since he has been the Acting
Director there would be a dual propriety here, that it would be proper
for you to inquire into these things and that it would be proper also
for oversight hearings to inquire into them — ^and perhaps budget hear-
ings too.
Senator Cook. You see, I get from this that somehow or other you
want everybody to live in more of a 1984 society. For instance, let us
take your item 3 : Was it proper to drop the matter because of the
simple assertion of an attorney-client privilege? Would you, as a
lawyer like the FBI to go behind your attorney-client privilege that
you have under the law ?
Mr. Schlossberg. No, Senator, not if I really have an attorney-client
privilege.
Senator Cook. Do you not think sometimes you do have an attorney-
client privilege?
Mr. Schlossberg. Oh, indeed, and I think that when an attorney-
client privilege is asserted it is usually very narrow, in connection
with a piece of correspondence or in connection with advice given to
a client. But when a lawyer is alleged to have engaged in an illegal
act, and I think it was illegal, to destroy campaign records at this
time
Senator Cook. You think ?
Mr. Schlossberg. That is right, I think. Because the law is not ab-
solutely clear on that. Senator. I do not think that it is automatic and
per se that the attorney-client privilege would attach itself to that,
and even if it would, that does not foreclose investigation. Sometimes
you can ask questions around the attorney-client privilege without
doing away with that privilege, recognizing the propriety of the
privilege and protecting it, and at the same time exploring matters
that are proper.
554
I just believe that this statement that was made, tliat there is a pre-
sumption of reguhirity in this investigation, has to do with all of this
quick turnoff. Somebody said, "You try very hard but if there is the
slightest hint from somebody for whom you have the greatest respect
and so on, you try somewhere else." You would stop trying on that one.
Senator Cook. I must say, as a fellow lawyer, I think you would be
very offended if you claimed the attorney-client relationship with one
of your clients and then found that the FBI was trying through other
sources to break down the privilege that you had under the law. I
think you would be very disturbed about that, and I think you and I
would be some of the first people who would scream very loud about it.
]Mr. ScHLOSSBERG. There is no question that if the thing you are talk-
ing about happened I would be disturbed about it. I do not believe
that is this case. I believe that here the attorney himself is alleged to
have destroyed the records rather than the client.
Senator Cook. I might say one other thing in conclusion, in all fair-
ness, and I am not representing anybody but this individual right here.
Mr. ScHLOssBERG. Certainly.
Senator Cook. You were critical of Mr. Gray's speech when he made
reference to the fact that an agreement had been reached on certain
terms. You indicated that he was in effect trying that case in that
speech. I must say, Mr. Schlossberg, you made it very clear that under
the terms of a so-called contract that was not true and that it was really
zero compensation and that they received nothing.
Mr. Schlossberg. That is right.
Senator Cook. And I might suggest to you, in all fairness, you might
be trying that case here.
Mr. Schlossberg. Well, the only difference is that at the time of
his speech there had not been a decision in the case.
Senator Cook. Has there been a decision now ?
Mr. Schlossberg. There has been a decision in the district court.
Senator Cook. I thought you said it was before the emergency court
of appeals?
Mr. Schlossberg. That is right, but in that court it has been argued
and briefed and it is finished. At that time this case had not yet been
argued and briefed to the district court. And I did not present only
one side.
Senator Cook. But a final decision has not been made?
Mr. Schlossberg. A final decision has not been made.
Senator Cook. A final decision is pending and still has not been
made ?
Mr. Schlossberg. That is correct.
Senator Cook. Thank you, Mr. Schlossberg.
'Senator Hart. Next, and really for the second time, the committee
welcomes Mr. Edward Scheldt.
Mr. Scheldt, for the record, although you did state it on late Friday
afternoon, would you provide the committee your background ?
TESTIMONY OF EBV/AED SCHEIDT, EESTON, VA.— Eesumed
Mr. ScHEioT. Thank you. Senator.
Very briefly, I served in the FBI for over 21 years, and for 15 of
those I was a special agent in charge. I served as special agent in
charge for 6 years of the FBI's largest office and, for a brief time,
555
was in charge of the oflS.ce in Senator Hart's home district, the FBI
office in Detroit.
I left the FBI nncler vohintary retii'ement at the age of 50 and
accepted a position as Commissioner of ]SIotor Vehicles in the State
of North Carolina, where I served in that capacity for 13 years under
four different Governors.
I have had a lifelong interest in law enforcement not only because
of my FBI career but also because one of the divisions of the Depart-
ment of Motor Vehicles in North Carolina is the State highway patrol.
That, of course, is also a law enforcement agency, and one which, as a
matter of fact, had frequent and, indeed, daily dealings with the FBI
during the time I was commissioner.
I prepared, in another context, a resume summarizing my experience
and background which I will not read but which I will be glad to
submit.
Senator Hart. It will be printed in the record at this point.
[The resume referred to follows :]
Edward Scheidt,
11418 Waterview Cluster,
Reston, Va.
Age 70. A.B. 1926, LL. B. 1931, both University of North Carolina. Admitted to
North Carolina Bar 1931.
Over 15 years as an executive in the Federal Bureau of Investigation, pre-
ceded 'by 6 years of investigative experience in the same organization. For 9
years Special Agent in Charge of the Charlotte office of the FBI, for 6 months in
charge of the Detroit office, and for 6 years in charge of the FBI's largest field
office, that at New York City. Six years of service on small committee within
FBI which dealt with employee suggestions, methods of stream-lining opera-
tions, and means of achieving greater efiieieney and economy. Intermittent
service as a member of the Inspection iStaff of the FBI. In that capacity inspected
21 field offices throughout the United States to check on their operations. FBI
service was 1931-1953.
Commissioner of Motor Vehicles for the State of North Carolina, under four
Governors, 1953-1965. In this capacity was in charge of a department of more
than 2.000 employees consisting of 11 divisions, among which were the State
Highway Patrol, the Driver License Division, the Registration Division, and
the Driver Education and Accident Records Division. Under my direction, the
North Carolina Department of Motor Vehicles achieved national recognition for
eflacient and progressive operations. Both the Highway Patrol and the Driver
License Division repeatedly won "Outstanding Achievement Awards" from na-
tional authorities for their consistently excellent programs.
Past President, American Association of Motor Vehicle Administrators. Past
Chairman, National Committee on Uniform Traffic Laws and Ordinances. Past
President, Association of State and Provincial Safety Coordinators. Recipient in
1961 of the Hoffman Award, given each year to the man selected as the nation's
most distinguished professional in the field of highway safety. Life member.
International Association of Chiefs of Police. Former Chairman, Committee on
Enforcement and Safety, American Association of Motor Vehicle Administrators.
Former member. Traffic Conference, National Safety Council.
Extensive experience in public speaking, and in conducting and presiding at
meetings. Wide contacts in Federal, State and local government circles through-
out the nation, and in the judiciary, as well as in the academic and business
communities.
Author of numerous articles which appeared in Traffic Safety, The FBI Law
Enforcement Bulletin, The Traffic Quarterly, and other publications. Also author
of several training manuals published and used in schools for police. For 9 months
1936-37 was associated with the Institute of Government at Chapel Hill, con-
ducting special studies in law enforcement and police training under a special
leave of absence granted by the FBI. While a student worked part-time for the
University of North Carolina at Chapel Hill handling correspondence and inter-
views with prospective students. During this period, also served briefly as Field
Secretary of the University Alumni Association.
556
'Retired from FBI service 1953 and from state service in North Carolina 1965.
Since then, after travel abroad, employed as consultant in general areas of motor
vehicle regulations, traffic safety, and law enforcement problems. Top-flight
references.
Mr. ScHEiDT, Before I continue I think I ouoht to say something
here for the information of Senator Cook. At the time I mentioned
this Friday, Senator Hart v^as the only Senator here and I referred to
the fact that I had read in press reports some statement that he had
made about his limited experience as a prosecutor and I just wanted
to say for the record that out there in Detroit we FBI people thought
he was tops as a prosecutor. He was a fine U.S. Attorney and he is
entirely too modest in his description of his service as a prosecutor.
Senator Cook. May I say my respect for Senator Hart would be
parallel to yours.
Mr. ScHEiDT. Thank you, sir.
Senator Hart. Thank you very much.
[Laughter.]
Mr. ScHEiDT. Gentlemen, I thought long and hard before deciding
to come here and ask to be heard by this committee. It was not an easy
decision to make. After all, this in no way involves me personally.
I have no ax to grind. It is not an easy thing to do to come out and
testify in opposition to a man whose confirmation is a foregone con-
clusion, according to indications in the press and even in statements of
the distinguished chairman of the committee. But as I have studied
this matter in my own mind and worried over it, I keep thinking about
my 21 years in the FBI and his 10 months in the FBI. I think of those
early days in the FBI. It is hard to realize it now — time passes so
quickly — that when I became an agent in the FBI, J. Edgar Hoover
was only 36 years old. We had only a little over 300 agents in the FBI.
We had only a citizen's power of arrest, and agents did not even carry
firearms. We were actually prohibited from making investigations of
such organizations as the Communist Party.
Well, I saw^ and was a part of these developments in the growth
of the FBI. I recall very vividly the Lindbergh kidnapping case, in
which I performed some services, and the Urschel case, and these
things which caused the Congress to extend the jurisdiction of the
FBI by the passage of the so-called Federal crime bills, and then the
Bureau was enlarged on account of that. Then came the 1939 war
clouds and we know what happened as a result of the involvement in
World War II. I was a part of that picture, and somewhat^ — and
maybe this is a way people feel as they grow older — to me those days
were the golden age of the FBI. I made in those days many lifelong
friendships, and I must say some of the finest and most able men that
I have ever known are the alumni of that illustrious group of FBI
people, consisting of many distinguished Members of Congress, a
number of Governors, judges, Federal and State, educators, highly
successful businessmen. It truly was a great organization to have been
connected with and its alumni association is certainly a verv distin-
■ -I «■' C'
guished one.
The more I thought about this nomination, the more I read about
the proceedings as they continued before this committee, the more I
felt this impelling urge that it was my duty to be here.
I remember a slogan, going back to my boyhood days, which said,
"I slept and dreamed that life was beauty. I woke and found that life
to
557
was duty," I am here today only because of my feeling that it is my
duty to be here.
I am here, second, because it seems to me that I sense in our country
a spirit of apathy about the way conditions go on and things progress.
It seems to me there is a lack of the indignation, at least expressed
indignation, which people should feel about injustice which they see
and experience in their lifetime.
In any event, when the announcement was first made that IMr. Gray
was being nominated as Acting Director of the FBI, I felt certain
misgivings about it, and these misgivings really could be classified into
two parts. They were joartly because of the fact that I did not see in
his background any special traits that made him outstanding as a man
that everyone would agree, that there would be any consensus, that
he would be an ideal choice to be the head of the FBI. Then, second,
I reserved judgment because it did seem to me that maybe there was
an element of politics in this appointment.
I will have to admit I was somewhat reassured by the statements
of the President of the United States, as I recall them. The appoint-
ment, when it was first announced, was to keep it out of politics. It
was sta,ted, to the best of my recollection, that by appointing Mr. Gray
as Acting Director this would prevent the issue of politics to come
up in the confirmation hearings of the Senate. So that was reassuring
in that sense that this appointment was made if not entirely but in
part at least to keep this whole matter out of politics.
But then Mr. Gray had not been in there very long when allegations
began to surface that he was involving the FJBI in partisan politics.
This really disturbed me, disturbed me greatly. Perhaps I may be
naive. Someone described me one time. Senator, as being a combination
of sophistication and naivete, and I guess that at times I am naive.
I remember something that appeared in a book written by Don "\^^iite-
head, "The FBI Story." It tells about the time when Mr. Hoover was
offered the appointment as Acting Director of the FBI by INIr. Stone,
Harlan Fiske Stone, then the Attorney General, later the chief Justice
of the United States. He invited Mr. Hoover into his office. "Sit down,"
he said. Mr. Hoover took a seat. I will skip a few lines here. "Young
man," said Mr. Stone, "I want you to be the Acting Director of the
FBI."
Mr. Hoover said, "I will take the job, !Mr. Stone on certain
conditions."
"What are they?"
"The Bureau must be divorced from politics and not be a catchall
for political hacks. Appointments must be based on merit. Second,
promotions will be made on proved ability and the Bureau will be
responsible only to the Attorney General."
"The Bureau must be divorced from politics." That is what he is
quoted to have said. It is 50 years since that memorable day. Does it
mean we have come full circle and now after that glorious beginning
when the Bureau was to be divorced from politics we are returning
to this?
In the foreword to the same book IMr. Hoover himself writes :
Another strength of the FBI arises from the fact that our organization is a
career service in wliich appointments and promotions are made on tlie basis of
ability, merit, and competence. Eacli of the 11 Attorneys General under whom
I have served as Director has been unswerving in the support of the Bureau as
91-331— 73-^36
558
a career service, and each has supported the Bureau against any move to inject
the element of political favoritism in its operation.
Let me repeat this sentence "And each has supported the Bureau
against any move to inject the element of political favoritism into its
operation."
Then there was another thought that troubled me about this mat-
ter— as the evidence seemed to be mounting that under Mr, Gray's
direction the FBI was being involved in political operations^ — and the
second thought is something which, to the best of my knowledge, has
not been brought out in these committee hearings. I have here the
FBI's annual rej^ort, and listed among the matters which are handled
by the FBI are election law matters. This means violation of the elec-
tion laws, election frauds, every type of irregularity involving a Fed-
eral election, is in the primary investigative jurisdiction of the FBI.
Does that not suggest, gentlemen, that the Director or xVcting Direc-
tor of the FBI has to })e most careful and circumspect in his conduct
so as to avoid creating an aura of favoritism toward one political
party or another? "Wliat is the position of an ordinary agent in the
FBI if an allegation is made that there are election irregularities
involving one of the parties which is the opposite party to the one in
which his chief is laiown to be politically active? Can he really feel
that he is supposed to go in there and pull no punches and do every-
thing he can to investigate it ? It seems to me that the position of the
staff, the ordinary rank and file personnel, is compromised if the Act-
ing Director is in a compromising position himself.
Well, in any event, I felt that there was nothing that I could do
about this, perhaps nothing that I should do. But, I was on the alert.
And next there came to my attention an article which appeared in the
Raleigh News and Observer on September 8, 1972, which was headed
"New FBI Chief Backing Nixon." It starts out :
L. Patrick Gray III, acting director of the Federal Bureau of Investigation,
has departed from the nonpolitical practice of his predecessor. ,J. Edgar Hoover,
by making a series of speeches that follow key points in the political line of the
incumbent administration.
On at least one subject, by down-playing the significance of rising crime sta-
tistics, he has adopted a Nixon administration line that conflicts with the
interpretation that Hoover put on the figures.
Now let me digress here for just a moment, and I am not so sure that
it is a digression. I was astounded to hear the previous witness say this
morning that waiting in the wings is Chief Wilson in case something
happens to this nomination. It seems to me the committee would be
better off with Mr. Gray than they would with Mr. Wilson.
The campaign line seemed to be that you had a law and order admin-
istration, that they were trying to cut down on crime, and they had
done so, at least they had decreased the rate of increase in crime, and
ISIr. Gray, according to this press report, and I have seen others, too,
was taking the line in speeches he was making that crime was decreas-
ing or the rate of crime was going down, and according to the article
that was contrary to the interpretation that ]Mr. Hoover put on the
figures.
[The article from the Ealeigh News and Observer referred to
follows :]
559
[From the Raleigh News and Observer, Sept. S, 1972]
New FBI Chief Backing Nixon
Washington — L. Patrick Gray III, acting director of the Federal Bureau of
Investigation, lias departed from tlie nonpolitical tradition of liis predecessor,
J. Edgar Hoover, by making a series of speeclies tliat follow key points in the
political line of the incumbent administration.
On at least one subject, by downplaying the significance of rising crime
statistics, he has adopted a Nixon administration line that conflicts with the
interpretation that Hoover put on the figures.
In at least one other address — ^an assertion in a speech Thursday that the fed-
eral government is not spending too much on national defense as compared to
domestic programs — he is backing the Nixon administration's position on an
issue that has little to do with his role at the FBI.
Hoover made few speeches and almost never spoke publicly during political
campaigns, apparently to avoid the implication that he intended to aid one side
or the other.
He usually announced his views through FBI publications or published Con-
gressional testimony, commenting usually upon subjects directed specifically to
law enforcement personnel.
But Gray, an outspoken former naval officer who is a long-time supporter of
President Nixon, has accepted speaking engagements at an increasing pace since
Nixon made him acting director of the Bureau last May.
His tendency to speak in support of admiuisti-ation policies has become in-
creasingly evident as the political campaign has heated up, and it became more
pronounced Thursday when Gray spoke in Butte, Mont., and Seattle, Wash.
iSpeaking to the Washington State Bar Association, Gray said, according to
speech texts released here, that "many court decisions often go to unreasonable
lengths to protect the accused."
]Mr. ScHEiDT. Let me tell you what I think, and what I believe most
people think on that subject. They think that if crime is going down, if
the rate of violent crime particularly is decreasing, it is due to two
primary causes. The first of these is that people are terrified, people are
afraid to go out on the streets at night. People buy all kinds of locks
and tools, two or three difi'erent locks for their homes, to keep burglars
from getting in. So, to some extent, there might be a reduction in cer-
tain kinds of violent crime just because they have reduced the oppor-
tunity for the committing of crimes.
But, secondly, and I think more significant, the reason crime is going
down, if it is going down, is explained by the fact that they are just
not reporting the statistics. It was admitted, in fact justified, by the
Chief of Police here in the District of Columbia that some of the
offenses reported to the police are not recorded in their crime statistics.
To my astonishment the Chief of Police attempted to justify the exclu-
sion of these things. Well, I happen to know that this is contrary to the
principles of uniform crime reporting, that you cannot eliminate these
things. When I was in charge of the New York office of the FBI, the
FBI refused to publish the crime statistics of the New York City
Police Department for the very thing that the District of Columbia is
now doing.
I had several amusing experiences in that connection. I called upon
one police commissioner and urged him to submit honest statistics on
crime in New York City. The commissioner, after hearing my presenta-
tion and that of a colleague of mine — he sat up at a desk kind of like
you fellows are sitting at and had his deputy commissioners with him — -
put his fist down on the table and said : "We will stand on our figures.
We have got such a tough program here we have driven the criminals
across the river." That was the end of that one.
560
Well, it so happened lie was succeeded by another police commis-
sioner who was a very nice fellow whom I got to laiow very well and
occasionally we had lunch together. I thought I had gotten to know
him well enough that I could i^erhaps persuade him they could submit
honest figures to us and I presented the matter to him. And do you
know what he said ? He said : "Ed, do you want me to show a crime
wave in my administration?"
Well, gentlemen, that is the situation which existed then, not report-
ing offenses known to the police, and putting it in the discretion of the
police to throw crime reports m the waste basket — in New York they
called it the can file — and therefore show a reduction in crime.
That was one of the things in the article with reference to Mr. Gray's
speeches that bothered me in the light of that background. There was
another thing there but I will just submit the article for the commit-
tee's consideration.
Senator Hart. It will be printed.
Mr. ScHEiDT. Thank you, sir.
The article was followed by an editorial in the News and Observer
on September 10, 1972, entitled "Gray Is Politicizing FBI Post," more
or less commenting on the things in the article.
[The editorial referred to follows :]
[From the Raleigh News and Observer, Sept. 10, 1972]
Gray Is Politicizing FBI Post
(By Joseplius Daniels)
L. Patrick Gray, acting director of the FBI, seems as intent on making his
office openly political as the late J. Edgar Hoover was intent on keeping it non-
partisan.
It is unrealistic, perhaps not desirable, for Gray to pretend complete dis-
association from the politics of the Nixon administration. He is a long-time
Nixon supporter who brought a broad range of interests to the FBI post. He
did not come up through law enforcement channels, and has never been com-
mitted to a nonpartisan career in the more narrow professional role of Hoover.
Gray's politicizing of his job, however, goes beyond continued personal loyalty
to the President. He is taking to the stump almost like a Nixon campaign aide.
He has been making a series of speeches that downplay the significance of rising
crime statistics, a key point in the Nixon law-and-order position this year. And
in one recent speech he went outside the law enforcement field entirely to argue
that the Nixon administration is not slighting domestic needs with the size of
the defense budget.
In another si>eech on law enforcement policy, he offered the opinionated view
that "many court decisions often go to unreasonable lengths to protect the
accused" and illustrated his feelings by taking sides in cases that are on appeal
to the U.S. Supreme Court.
This goes far beyond personal loyalty to the administration and the Nixon
line on permissiveness. It sends a signal down the ranks to FBI agents in the
field that the boss isn't too keen about following some court decisions. Some
agents, perhaps in hopes of advancement or better assignments, might well
signal back by trying to imitate the boss' uneven respect for some court decisions.
It is doubtful whether the late Mr. Hoover always was as nonpartisan as he
seemed. But he increased public confidence in the FBI by apparently strict
adherence to the rule of law and insistence that others in the bureau accept
similar self-discipline. Hoover rarely made speeches, and those were never during
presidential elections. And he never challenged or tried publicly to influence
decisions of the courts.
Gray's different view of the FBI director's role is moi'e than a difference in
style. He is so attached and so responsive to the political apparatus of the Nixon
administration that it is doubtful that he could serve under any other president.
561
Mr. ScuEiDT. Upon reading tlie article and the editorial, I proceeded
to write a letter to Mr. Gray. I will read it to you. It is very short :
Dear ]Mr. Gray :
I was distressed to read the enclosed news item entitled ''New FBI Chief
Backing Nixon" and an editorial "Gray is Politicizing FBI Post."
Does this mean that you feel it is permissible to involve the FBI in partisan
politics? If not, how do you justify the actions described in the enclosures?
I spent 21 years in the FBI and I dread seeing its noupolitical role go down
the drain.
I received a most courteous reply from ]Mr. Gray on September 15,
1972, which I will submit for the record. I vrill read a part of it. It
begins :
In reply to your letter of September 11, I share your concern regarding the
statements made in the newspaper items you enclosed entitled "New FBI Chief
Backing Nixon" and "Gray is Politicizing FBI Post." Upon my designation as
Acting Director of the FBI, the President gave me only one instruction — that
the FBI and its Director continue to be absolutely nonpolitieal — ^and I definitely
have tried to govern my activities accordingly.
My statement that the rate of increase in serious crime is lessening was made
to point out the positive results that have been achieved by the combined efforts
of the Nation's law enforcement officers, our courts, our prosecutors, our correc-
tions officers and our fellow citizens who are just plain fed up with the rampages
of the criminal. I made it clear that the crime rate is still high, that there is no
room for complacency and that much work remains ahead. Further, last month,
on the occasion of the release of the uniform crime reports, Attorney General
Kleindienst pointed out that increasing crime must continue to be of foremost
concern to law enforcement agencies at all levels of government and I heartily
agree. This is not a political position.
He also commented on something else in the speech. I do not want to
unduly take the committee's time, but he did add a handwritten post-
script to his letter :
I view my appointment to the position of Acting Director as a return to the
service of my country which will always come first — ahead of political party or
any other party — or any person ! I will continue to speak in behalf of our country.
I will admit that I still had an uneasy feeling about this being a
political question since this seemed so closely to parallel the line that
was being taken in the political campaign by one of the political
parties. But I felt that Mr. Gray certainty should be entitled to the
benefit of any doubt and that he had written very eloquently and about
as well, I think, as anybody could have written in defense of the mat-
ters wliich had been commented upon in the news article and in the
editorial.
I wrote this letter to him :
Dear Mr. Gray :
Thanks for your letter of September 1.5 and for answering the questions I
asked in my letter of September 11. I was quite relieved by what you said and
wish to extend my best vpishes for your continued success in the post you now
hold.
I threw aside the doubt, gave him the benefit of the doubt, and reallj^
I fancied that maybe he had been a little bit insensitive to these issues
and that if someone who had had this long experience that I had in the
Bureau wrote him directly it would have a salutary effect and make
him extremely careful not to compromise himself in that respect.
Now, I do not think it is enough for a man to say something is non-
political, period. It may be that his political party thinks it is non-
political but the opposition party thinks it is very political. The best
562
thing that a man in that sensitive position, who has the responsibility
for investigating violations of the election law, the best thing that he
could do, would be to say nothing which could be construed as politi-
cal, and in any public appearances his speeches ought to be confined
to the work of the FBI and related subjects and not to these questions
which are considered by members of the opposite party to be political
questions.
In any event, several months went by, and then I read a thing which
disturbed me more than anything I had seen before. That was an
article in Time magazine which stated that ]Mr. Gray had sent a tele-
type to the 21 field offices in 14 States telling them to gather material
to be used for campaign purposes by the man who was running for
President on the political party to which Mr. Gray belongs. I do not
recall in reading tlie reports of this committee's hearings whether the
question of this telety]")e has been discussed. Perhaps it has been.
Senator Hart. Yes, it has.
Mr. ScHEiDT. The teletype was described at some length in the Time
magazine article. The magazine seemed to have gotten an exact copy
of the teletype because they seemed to quote it verbatim. I must say
things have gone down a bit since I was in the Bureau because I do
not believe that in those days Time magazine would ever have gotten
a copy of an internal memorandum or instruction to the field because — ■
apparently being smaller and having tighter controls — things like
that just did not get to the papers.
[The Time magazine article referred to follows :]
[From Time Magazine, Nov. 6, 1972]
The FBI
POLITICAL ORDERS
While the White House has tried to ignore some unpleasant FBI findings in
the Watergate case {see following story), it has used the agency in an un-
precedented way to aid the Nixon campaign. In September, Time learned last
week. Presidential Assistant John Ehrlichman asketl the FBI for expert advice
to aid Republican campaigners. L. Patrick Gray, acting director of the bureau,
forwarded the request as an order to 21 FBI field offices in 14 states.
The aim was to get FBI agents' guidance on how the President and his sur-
rogates might handle campaign issues related to criminal justice. The directive
also asked for ideas on specific campaign activities that Ehrlichman could rec-
ommend to the President. Though coming under the heading of political intelli-
gence, the service requested was far different from espionage activity like the
Watergate affair. The FBI was not asked to eavesdrop, spy on candidates or
disrupt campaigns. Nevertheless, the order was a violation of the FBI's non-
partisan tradition.
KEEP IT BRIEF
Teletyped to the field oflSces under Gray's name on Sept. 8. the message began :
"In order for John Ehrlichman to give the President maximum support during
campaign trips over the next several weeks> the following information is required
for eacii of the states listed : 1. The identification of the substantive issue prob-
lem areas in the criminal justice field for that particular state. Please limit
yourself to problems of suflScient magnitude . . . Keep it brief. All that is neces-
sary is to fiag a sensitive problem so that it either can be avoided or more
extensive preparation can be undertaken should we choose to speak about it.
"2. A list of events relating to the criminal .justice area that would be good
for John Ehrlichman to consider doing. For each suggested event, the following
items should be indicated : A. The purpose of the event. B. Tlie nature of the
group or institution involved. C. The content of the event. D. The names of specific
563
people who can be contacted for the purpose of setting it up. E. All trade-off
factors to be considered in scheduling the event."
As an example of the kind of issue Ehrlichman was interested in, the directive
suggested that "there are certainly criminal justice problems such as the Fort
Worth Ifive that vre should flag for the President." This referred to the case in
which five New York men were jailed in Fort Worth for refusing to answer
federal grand jury questions about buying guns for the Irish Republican Army.
Agents worked over the weekend of Sept. 9 and 10 to obtain the information
required by Gray and to meet his Sept. 11 deadline. Concluded Gray's message :
'•The deadline must be met." FBI sources would not reveal just what the replies
from the field contained.
While it has been normal for the White House to ask for FBI files on in-
dividuals— a request former FBI Chief J. Edgar Hoover routinely granted Lyn-
don Johnson, for instance— there is no public record of the bureau's having
been asked to initiate political studies for a President. Ehrlichman later told
Time that the request for information had gone from his office to the Justice
Department and should not have gone to the FBI. If it did, he said, it would
violate Administration policy and "would not be condoned by the White House."
The procedure astounded veteran FBI officials. Said one of them : "The White
House wouldn't have dared to send over an order like that when Hoover was in
charge. He would have kicked it right back to them and refused to do what they
wanted."
Mr. ScHEiDT. Well, this was a little too much for me, so I wrote to
Mr. Gray again. Iwrote him on Xovember 10 :
Dear Mr. Gray :
You will recall our correspondence in September when I wrote you about
certain newspaper items alleging that you were involving the FBI in partisan
politics. In your reply you said that upon your designation as Acting Director the
President gave you only one instruction — that the FBI and its Director con-
tinue to be absolutely nonpolitical — and that you definitely have tried to govern
your activities accordingly. You also stated in your letter : "I assure you that
the FBI will continue in its nonpolitical role as long as I am in charge."
Time magazine, in its issue of November 6, 1972, quotes a Teletype message
allegedly sent by you to various field offices instructing them to furnish certain
information "to give the President maximum support during campaign trips."
If the Time magazine article is correct, this Teletype message would be di-
rectly contrary to your statement that "the FBI will continue in its nonpolitical
role as long as I am in charge." According to press reports you have declined
comment regarding this, and you are quoted as saying "I don't have any com-
ment on what Time magazine reported. Let Time magazine comment on what it
reported."
In the light of my many years of service in the FBI I do hope you will explain
to me how the Teletype referred to in Time magazine can be reconciled with the
"nonpolitical role" of the FBI under your direction.
I received another very nice, gracious letter from Mr. Gray in re-
sponse to that. His letter was dated November IT, which I shall submit
for the committee's record :
Dear Mr. Scheldt :
I have received you letter of November 10th and appreciate your interest in
and concern for the Bureau. I recognize that dedicated former employees such
as yourself have given the FBI the legacy of respect and esteem it enjoys today.
As you correctly noted, I have declined to comment on the November Gth Time
magazine article, and this is still my policy.
I want to reiterate to you, however, that the statements in my letter of Septem-
ber 15th to you concerning the FBI's nonpolitical role still stand. As long as I am
the head of the FBI, I will do everything within my power to insure that the
FBI remains divorced from politics.
With every good wish,
Sincerely yours.
Frankly, this sounds to me like Alice in "Wonderland. You do some-
thing which could not be more political and you are asked what about
564
it and yon say, No comment, bnt I am nonpolitical. Anyway, that is
the end of that, what I wrote him and what he said.
A little later on, I saw an article in the Washington Post which
discussed Mr. Gray's 6 months as Chief of the FBI. It quoted various
speeches that he had made. One, and if it has come up during the
committee hearings it has not been reported in the press in the items
I have seen, was a speech he made before the VFW in ISIinneapolis
on August 23, 1972, entitled "America Is Worth Fighting For."
Here is an excerpt:
As the visible symbol of our Nation, our flag continues to wave briskly in the
crisp breeze of democracy. And while some have pledged their allegiance to the
red flag of Communist tyranny, the black flag of anarchy, or the white flag of
surrender, I proudly share your obvious affection for the red, white, and blue
of America's banner."
Gentlemen, so far as I know there was not then, has not been dur-
ing the interval since then, and is not now anybody in this country
advocating waving the white flag of surrender. The only time that 1
can remember ever having heard that phrase used was in the testimony
of Secretary Laird before a congressional committee when he stated
that the foreign policy advocated by Senator ]\IcGovern in his cam-
paign for the Presidency was waving the white flag of surrender.
And, gentlemen, I do not think you have to be too smart to be able
to figure out that this is a code way of saying, "Do not vote for
McGovern." Nobody else has used that phrase, there is not anybody
advocating doing it, and it is a very unusual phrase and it was repeat-
edly used by Secretary Laird.
So I just cannot help but feel that this is a very overt and blatantly
political way of saying, "I am campaigning for the reelection of the
incumbent President."
That speech is quoted in the Washington Post article of November 6,
1972, which I will submit to the committee.
Senator Hart. It will be received.
[The article referred to follows:]
[From the Washington Post, Monday, Nov. 6, 1972]
Aftek 6 Months as Chief, FBI's Gray Eyes Past, Peesent, Futuks
(By Sanford J. Ungar)
"No one can replace The Giant," said Acting FBI Director L. Patrick Gray III
at a Flag Day ceremony here last June.
It was only a few weeks after President Nixon had named him — temporarily —
to take over for "The Giant," the late J. Edgar Hoover, and Gray was accepting
the 1972 Distinguished Citizen's Award from the Washington Lions Club, pre-
sented to Hoover posthumously.
Gray has learned a great deal .since then, but even now. after 26 weeks in the
job, he is still struggling with the problem of how to replace Hoover, keep the
FBI running, satisfy all the appropriate people inside and outside and win perma-
nent appointment to one of the most powerful jobs in U.S. government service.
It hasn't been easy, because part of the task confronting Gray is to deal with
the extraordinary administrative chaos left behind by Hoover without ever pub-
licly admitting its existence.
He must elaborately praise his predecessor — "this enlightened pioneer of pro-
fessional law enforcement, whose distinguished career spanned one quarter of
our nation's history [and who] waged a lifelong battle against the forces of law-
lessness, both criminal and subversive," as Gray put it in a speech to the national
convention of the Veterans of Foreign Wars last August.
565
Yet he must virtually undo much of what Hoover in his last years and, at the
same time, rebuild public confidence in the embattled FBI.
He has to convince the FBI's oldtimers and professional investigators, viho are
absolutely essential to the bureau's day-to-day operations, that nothing funda-
mental will change. But he has to change enough to attract new blood and young
innovators.
Gray must also persuade the White House, where he has powerful enemies,
that he can be trusted, politically and professionally, to run a supei'-sensltive
agency for the next four years.
Ironically, however, if he gets the long-range nomination from President Nixon
(if he is re-elected), as the first FBI director requiring Senate confirmation, he
must convince Congress that he can be independent, politically and professionally,
from the White House.
Most observers agree, after six months, that Gray has done relatively well so
far, and he appears to have won unexpected allies vrithin the bureau and among
the public.
But others, including some long-time bureau officials, say they fear that the
FBI might be dangerously politicized under his control, because of his close
identification with a particular President and political party. The same concern
would be raised, no doubt, about almost anyone likely to be named FBI director
either by Mr. Nixon or Democratic presidential candidate George McGovern.
A few bureau-watchers go so far as to appeal for the appointment of a "new
Hoover," whose credentials would be sufficiently bipartisan that he could outlast
one or two changes in the presidency.
Physically fit. Gray works long days that begin shortly after dawn. But country
lawyer that he is, he escapes almost every weekend to his home in Stoniugton,
Conn.
Although he is unpopular with some of the President's closest political lieu-
tenants. Gray is known as a dyed-in-wool Nixon loyalist. He considers himself a
conservative on most issues, but compared to Hoover he is very moderate indeed.
He does not hesitate to depart from administration orthodoxy by, for example,
advocating strong Federal gun control laws.
Despite some reports that he was long under consideration as a potential
successor to Hoover, Gray maintains to this day that he was completely sur-
prised when Mr. Nixon tapped him as the acting FBI director the day after the
50 year veteran died of a heart attack last May.
One reason Gray is convincing on that point, says a bureau source, is that
"when betook over, he didn't know a damn thing about the FBI."
Then assistant attorney general in charge of the Justice Department's Civil
Division and the President's unconfirmed nominee for deputy attorney general
(a position he never got to occupy hecause of the delay in Attorney General
Richard G. Kleindienst's apiJroval by the Senate). Gray's only real previous
managerial experience had been in the Navy's submarine service.
Except in his position as chief court enforcer of the wage-and-price freeze,
he had no law enforcement exiaerieuce at all — ^a fact that was not lost on the
FBI's senior hierarchy when he took over.
Gray has neutralized some of the concern on this point by merely acknowledg-
ing his status as a neophyte. In speeches, he has repeatedly called himself, at 56.
"a newly minted law enforcement professional."
Speaking to the International Association of Chiefs of Police in Salt Lake
City last month, he said, "I consider myself doubly privileged to embark on a law
enforcement career at this time — pri\-ileged because the opportunities for service
are so genuine, and because the future of our profession looms so bright."
In his earliest days in Hoover's plush suite on tbe fifth floor of the Justice
Department building. Gray bedeviled some of the FBI's ranking officials with
what one frankly called "stupid questions."
He would demand a full explanation, for example, of each step of the procedure
followed by the bureau in investigating bank robbex-y cases, and some feared that
he was planning to order impulsive and uninformed changes.
''But what we discovered was that he was just tiTing" to learn, and usually he
would tell us to continue what we had been doing for years," a source exijlained.
"But it sure took up a lot of our time, answering his questions."
Gray asked his qiiestions in pai*t because he had no better idea than the
average citizen of the quality of the FBI's performance.
The bureau's image as an effective crime-fighter is based only ixirtially on
public knowledge of its successes over the years in dramatic, headline-catching
566
cases. Tlie bulk of its reputation lias actually been established in fictional writ-
ings and television programs.
Gray bad the benefit of no congressional reports or other government agency
reviews of the FBI because none exist.
Only the House Appropriations Subcommittee headed by Kep. John J. Rooney
CD-N.Y.) has had any mandate to supervise the bureau's affairs, and its delibera-
tions have long been characterized by a willingness to endorse anything Hoover
said or did.
When he took over, Gray found that Hoover had ruptured the FBI's liaison
with most other federal agencies, had virtually lost interest in fighting organized
crime and was running things largely on the basis of whim and personal
predilection.
The acting director is as aware as anyone that there may be a push to in-
crease the public accountability of the iFBI, and as a prerequisite he is tiding
to make it accountable to him.
One means of doing that has been to establish central discipline both at FBI
headquarters here and in the 59 field offices around the country, many of which
had been run by "empire-builders" who fiourished under Hoover.
Gray forced out Wesley G. Grapp, special agent in charge of the Los Angeles
office, who resisted a liberalized dress code, personally monitored office phone calls
and built up huge financial commitments to Southern California banks.
He also transferred Robert Kunkel, head of the Washington field office, for
falsifying a report on how an agent was disabled during an antiwar demonstra-
tion.
Another field ofiice chief, in Honolulu, was sent to a smaller ofiice when the
wives of the men working for him wrote a letter of complaining about him to
Gray.
The next to go is expected to be the special agent in charge of the Cleveland
office, who apparently tried to cover up an agent's inquiries about a congressional
candidate by explaining that the agent was "a new voter."
Many veteran FBI ofiicials welcome these personnel changes, but they are
concerned about the effect of the widespread publicity they receive.
Unlike most other government agencies, the FBI has traditionally been able to
keep disciplinary actions in the family. Almost all transfers were immediate,
unexplained and announced only to the individual involved and only in writing.
Gray originally felt that the publicity was a good thing, not only because it
would increase public awareness of the bureau but also because it might have a
deterrent effect on power brokers in the field offices.
He is now apparently chagrined, however, and fears that the price of increased
public awareness may be a decline in morale within the bureau's ranks. Having
"opened a window" on the FBI, as he likes to put it, he would now like to close
it a little bit.
That may be difficult, given Gray's ambitious tours of field ofiices, speeches and
press conferences around the country, which have encouraged more public dis-
cussion and more questions about the FBI.
He has given so many speeches in the past six months that he may be better
known among the people now than his titular boss, Kleindienst, or any other
member of the President's Cabinet.
Some bureau old-timers are astonished by the speeches, which are churned out
by the FBI's Crime Records Division, minutely pored over and revised by Gray,
and only recently began to repeat themselves.
They are speeches that would do any ambitious politician credit, geared to the
particular audience or occasion, often quoting from John Adams, Alexander
Hamilton or the Federalist Papers (his favorite leisure time reading).
Addressing the City Club of Cleveland last August on "Freedom Under Law,"
Gray told his listeners that "the great American adventure born two centuries ago
has growni stronger generation after generation." But he also warned that white
collar criminals and those who violate the antitrust laws were weakening society
along with drug dealers and bombers.
In a talk before the Washington State Bar Association, he took up a familiar,
Nixon administration theme by questioning the "exclusionary rule," which keeps
illegally obtained evidence from being used in criminal court proceedings and is
uow being weakened by the Supreme Court.
He poked some fun at himself as a "novice" before the Executives' Club of
Chicago last month.
567
Gray probably reached bis patriotic zenith in his VFW speech in Minneapolis
on Aug. 23, entitled "America Is Worth Fighting For." A typical excerpt:
"As the visible symbol of our nation, our flag continues to wave briskly in
the crisp breeze of democracy. And while some have pledged their allegiance to
the red flag of Communist tyranny, the black flag of anarchy, or the white flag
of surrender, I proudly share your obvious affection for the red, white and blue
of America's banner."
Gray's speaking tours, which critics say make him look as if he were running
for the directorship, have provoked disdain in some White House quarters
and annoyance among others in the Justice Department, including its public
information ofiice.
He steadfastly insists, however, that they are not political, either in a personal
or an administration context, but merely part of his efforts to bring the FBI
to the people.
Politics will be Gray's undoing, if anything is.
Despite his assertion that the FBI investigations into the Watergate bugging
incident and the Soviet grain deal have been as thorough and objective as any
the bureau has ever done, he has been unable to shake the image of being the
administration's protector in those matters.
(In fact, the FBI's role is often limited by the mandate passed along to it
by the Justice Department. When it turns up new leads, it must sometimes
have that mandate extended before following them up. )
So that when Gray's name is sent to the Senate for confirmation, he is expected
to have trouble with two recent incidents.
One was the revelation that the FBI, since 1950, has collected information,
supposedly only from public sources, on all members of Congress and congres-
sional candidates.
In theory, the information was used as part of the bureau's "congressional
relations program" and in investigations of threats against congressmen. But
Gray, suspending the program recently, said he could see how such files might
be misinterpreted by Congress and the public.
W'liat is still a puzzle is how Gray missed finding out about the program from
Thomas E. Bishop, the assistant FBI Director for the Crime Records Division,
which was in charge of compiling the information.
(Gray, on taking office, said he had made a thorough search for secret files
and political dossiers, but turned up virtually nothing.)
Bishop is also in disfavor in connection with the other incident : the discovery
that he forwarded to FBI field offices a White House request for election-year
political advice on criminal justice issues.
Even if Gray manages to convince the Senate Judiciary Committee that he was
unaware of either matter, he may lie held responsible as the man in charge at the
time. And the inevitable question is bound to be : were there other such instances
and programs that bave not yet been publicly exposed?
Xotwithstanding some concern over the question of politics in bureau affairs
and some resistance to his new policies — ^things like the dress code and weight-
control program really do matter within the FBI — ^Gray is credited with sub-
sbintial improvements in the morale of the rank and file.
He also reesta^blished the FBI's rapport with other jagencies and other di-
visions of the Justice Department. Hoover, in his last years, had become more
stubborn than ever in refusing to go along with the department's wishes in
sensitive criminal matters.
Gray's personal staff — young and therefore sometimes a cause of resentment —
is already preparing for the prospect of confirmation hearings early next year.
Even a check of potentially disgnintled former clients of his Connecticut law
firm has not produced o^bvious opposition.
Ironically, the administration's anticipated trouble from Sen. Edward M.
Kennedy's subcommittee investigation of the Watergate affair is expected to
deflect some of the political ammunition that might have been aimed at Gray.
Although there may be a fight, the chances are considered very good that
Gray will eventually be confirmed, if nominated.
Then, but only then, with Hoover's constituency placated and his own authority
and longevity e.sta.blished. Gray is expected to embark on fundamental efforts
to make the FBI a more efficient and constructive organization.
Mr. ScHEiDT. Down in North Carolina they have a wonderful State
motto. It reads "esse quam videri." I do not know, Senator Hart, what
568
your State's motto is, but I will put that North Carolina motto up
ag-ainst any. It means "To be rather than to seem." This is the problem
that I think you are confronted with in the confirmation of Mr. Gray.
The problem is what a thing is, not just what does it seem to be.
I am nearing the conclusion of my remarks, but it seems to me from
what I have read so far, and I have followed the hearings, that there
are some questions regarding the confirmation of this nominee that
have not been full_y clarified. Possibly some of these may have already
been covered. However, these are questions which seem to me pertinent
to this inquiry. First, why was Mr. Gray appointed in the first place ?
^VhJ was he appointed ? "^Vliat was the motivation for that appoint-
ment ? Was it because he was such an outstanding, prestigious figure
that his appointment would be recognized as being one which all right-
thinking men would agi^ee was the marvelous one for this important
post?
I think I know why he was appointed, and I think you know, too.
Secondly, I would like to laiow more about his qualifications for
the job. As I see it, he spent the greater part of his adult life in the
Navy. I believe he was a submarine commander. Now, it does happen
that one of the offenses in the jurisdiction of the FBI is crimes on the
high seas and I guess that includes crimes under the high seas. So he
did perhaps have some qualifications in that area, but I think his
practice was mainly in civil law, and certainly no unbiased person with
an open mind would consider him an outstanding nominee whose name
instantly recommended itself for this highly important post.
Then I would like to know was he really the best man they could
find for the job ? Would just anybody do ? Is this not so very important
that there ought not to be any doubt about the qualifications and
status and ability and prestige of the man who is holding the post?
Actually, we were somewhat lulled into quietude by the suggestion that
this was a caretaker appointment, this was to keep it out of politics,
this man would hold the fort.
Mr. Gray used a term, a basketball term, about a full-court press
here in his testimony. Well, I would use a basketball term to say that
I thought the President was freezing the ball, that was what he was
doing in the Gray appointment, at least that is the way it was supposed
to have started out.
But more important than that, I think the question is what has
Mr. Gray done since his appointment? He has had 10 months there.
Ten months we can look at. In this respect the Judiciary Committee
has a tremendous advantage because if there were a new appointment,
somebody whose name had never come up before, all you could look at
would be what his past record was. But in the case of Mr. Gray, you
not only have his background and qualifications, such as thev may be,
but also you have his actual record of performance in the 10 months
that he has occupied the post of Acting Director.
Now some of the things that, it seems to me, it would be pertinent to
examine, and perhaps this has l3een done, but if it has it has escaped
my attention : How much time has he sj^ent in the office ? I read a piece
somewhere that said he was referred to in the Bureau as "2-day Gray."
That may be slanderous. I do not know about that, but I have had some
experience in management surveys and I think you can tell something
about what a man does, how he is carrying out his responsibilities, and
569
you cannot do much in the office if you are not there. How much time
has he spent in the office ?
^\^iat about the people he brought with him into the FBI ? I under-
stand they are very fine people, and they came over with him from the
Justice Department, and I certainly would not say anything against
them, but this is a departure from the long tradition, and certainly a
great departure from what was advocated by Mr. Hoover in a state-
ment which I road to you earlier. Who are these people ? What is their
background? What are their duties? What is their authority? How
much are they paid \
I would say, having been in the FBI for this period of time, I served
for a time under JNIr. Hoover in the Washington headquarters, and I
did have their largest office for 6 years, and I think if, in those days,
somebody had come in from the outside and had a position of great
authority without any prior FBI experience, it would have had a very,
very bad effect on the morale of the people who were career people who
had been in all this time. Now, conceivably I could be mistaken about
that but I do think it would be an appropriate subject to look into.
Then I would be interested to know, if I were a member of the Judi-
ciary Committee, how much time has he spent away from the office and
what was he doing when he was away? How many speeches has he
made ? Where did he make them ? To whom, and what did he say ?
Gentlemen, I think the full text of every speech he made should be
studied, how much of it had to do with the FBI, and how much of it
paralleled campaign lines of one of the political parties?
I would want to know, more importantly, how much of the perform-
ance, such as it was of Mr. Gray, is actual fact and how much of it
is a creation of an image ? I go back to the North Carolina motto that
I am so fond of, "to be rather than to seem," and I cannot help but
feel much of what we have heard that is pro-Gray is creating the
image rather than actual performance.
Now, I read somewhere that he abolished the Crime Records Divi-
sion of the FBI. It so happened that I was one of the early people
who ran the Crime Records Division, and there were certain duties,
I will grant you it was not as important as it later became, but there
are certain things the Crime Records Division had to do then and
it has to do now and I am just wondering who is doing the work?
You just could not abolish the work, there are necessary duties to
perform.
I almost forgot to mention, in connection with this teletype that
went out to these field offices to get political information for the candi-
date for President, that I saw what appeared to be an inspired piece
blaming Tom Bishop for this, as being head of the Crime Records
Division. I know Tom Bishop and I do not believe Tom Bishop did
that, frankly, and I know how the FBI was operated then and some-
thing about the way it is operated now. I do not think a subordinate
would send out a teletype of that nature without approval or acquies-
cence of the head of the organization. If a subordinate could do that,
if it is so structured that it could be done on an important matter like
that, there is something radically wrong. That had to be approved
by the head man or somebody was deficient in having a system where
a'thing like that could go out without being approved by the head man.
570
I am wonderino: also about to what extent was it possible for the
Judiciary Committee to talk to knowledgeable i:)eople about the oper-
ation of the FBI, not just those people who asked to be heard. You
know, if you just have people coming who ask to be heard, ask to
testify, they may be just the tip of the iceberg, and you might say
to some extent some of them at least have some ax to grind or some
particular thing they are particularly interested in. But there must
be people with great experience and background who could throw
considerable light on the realities of this situation, who would not
come forward and volunteer themselves as witnesses.
In other words, it seems to me that it would be highly desirable if
the Judiciary Committee could make a real investigation of its own
on this. Perhaps it has, and I am just unaware of it, but I think that
that would certainly be indicated.
But on the record, on the basis of what I have seen, my correspond-
ence, what I have read, and so on, I would not go along with the recom-
mendation of the previous speaker. I really think what the Judiciary
Committee should do is to say, "Send us another name, you can do
better than that."
Thank you very much.
Senator Hart. Mr. Scheldt, I think all of us are very grateful for
your coming in to express your very serious reservations about the
nominee and your reasons for them.
I made a number of notes. Perhaps the only point that, in fairness
to Mr. Gray, assuming I remember the testimony, needs to be clarified
while you are here is on the business of the teletype to the field asking
for political information. That, according to ]\Ir. Gray's testimon3%
was sent while he was not at the office, but that when he did return and
learned of it he stopped it before it started. I do not know what that
would suggest as to the organizational structure of the Bureau. I agi*ee
that there has been press comment that Tom Bishop was responsible.
I do not know Tom Bishop, You do, and you say you do not believe
Bishop did it.
In the materials that have thus far been received by the committee
from Mr. Gray and the Bureau, in response to questions that we put,
one of them, in response to a question by Senator Ervin, is a memo-
randum reviewing this incident. It shows that Mr. Bishop discussed the
matter before it went out with Acting Associate Director Mark Felt.
With Mr. Gray in the field, Mr. Felt was the acting bossman.
Mr. ScHEiDT. Might I comment very briefly on that. Senator?
Senator Hart. Yes, surely.
Mr. ScHEiDT. I am perfectly willing to accept and believe that ex-
planation. After all, I was not there. But I do feel that Mr. Gray made
a very serious error in "no conunenting" this. Here this very, very
serious allegation was made and it seemed to me so obvious he could
have answered and should have answered. I know if I had been in
his place I would have answered and said, "I am terribly sorry this
happened, it was a mistake that it happened and will not happen
again," or something of that sort, but "no comment" on this thing-
creates an air of mystery about it and doubt and that, I believe, also
raises questions even if this did go out without his Imowledge.
571
Senator Hart, ]Mr. Gray testified that lie really hit the ceiling when
he heard about this, which again would cause one to wonder why he
did not respond to the Time inquiry.
I am not sure that we have received and reviewed or analyzed all
of the speeches that he made, but the committee has, I know, under-
taken to analyze them all and I am sure we will.
Senator Cook. He has given us all of them.
Senator Hart, I believe that Mr. Gray believes himself not to be
political. I believe he thinks that he is just not political, and that
VFW speech in Minneapolis did not sound political.
Mr. ScHEiDT. I believe that. The man does not think that is political.
If it is something for the Eepublican administration it is nonpoliti-
cal. That seems to be his idea.
Senator Hart, As you say, that which is nonpolitical to one man's
party can be very political to the other man's party. But I do think
that he believes that even in that time frame what he said should not
give rise to the feeling that some of us have that it sounded political,
Mr, ScHEiDT. I would like to say that I am not questioning his
sincerity or his graciousness. He could not have been more gracious
than in his response to my inquiries.
Senator PIart, Have you talked to Mr. Bishop, may I ask ?
Jtlr. ScHEiDT. Xo, I have not. I have not talked to anyone connected
with the FBI on this, or former people of the FBI, so I do not know.
But I just believe I know a little bit of how things like that run, unless
things have changed an awful lot. I will tell you this, nothing like that
would ever have gone out in the first place if J. Edgar Hoover had
been running the FBI. If anybody had proposed sending out a tele-
type like that one, it would have gone to his desk and that is where it
would have been killed. It is inconceivable that under J. Edgar Hoover
such a teletype would have gone out, or could have gone out without
his knowledge.
Senator Hart. Senator Cook.
Senator Cook. Thank you, Mr. Chairman.
]Mr. Scheldt, I have only some comments.
You said why was he appointed in the first place? It would be, I
think, rather imusual if the committee were to subpena the President
of the United States to come up there and answer that question.
It seems to me that the comments made in the VFW speech in
INIinneapolis are almost identical to comments I have heard from J.
Edgar Hoover. Let us talk about some of the speeches INIr. Hoover
made about 3'Oung radical groups in the United States. Would you
not consider those speeches political in nature ? I would, very much so.
And what about those acts that we read about to which IVIr, Hoover
said "no comment" and which got an agent transferred to Butte, Mont.
The point I make to you is that somehow or other we are trying
to equate one man with another man. I might suggest to you that it
has been amazing to me to sit here and hear some of the witnesses who
have praised J. Edgar Hoover to the skies. I might suggest that the
only reason they praised him is because they are confident that Mr.
Hoover is in the cemetery. I would not hear those comments from
those gentlemen if Mr. Hoover were still down at the FBI. I think
you would have to agree with that.
Mr. ScHEiDT. Could I comment on what you just said?
572
Senator Cook. Yes, in a minute. There is one other thing I would
like to comment on. You said that when you were in the FBI if, in
fact, such a teletype had been sent out the media would never have
known of it, because the FBI was then, at least in your opinion, such
an organization that if such a teletype had gone out it would never
have gotten to Time magazine. Do you know of your own knowledge
whether that may have occurred in the past, whether in fact it may
have gone out ?
Mr. ScHEiDT. I am positive it did not. I was the senior agent in
charge when I left the Bureau, and had been running an office for 15
years, through various Presidential campaigns and, as a matter of fact,
Mr. Hoover was obsessed with the idea that the Bureau could be in-
nocently involved in something, a conflict between Democratic and
Republican. I would sit across the desk from him, "Ed," he would say,
"be careful, do not let the agents do anything that could be." Not
only what he set out in writing but I got it from him right face to
face, that the man was very, very careful not to be staked out. He
could not have served every administration. Democrat, Eepublican,
back and forth, if he did not have friends in both parties and on both
sides of the aisle in Congress. This is one thing that he was very sensi-
tive about. There is no question in my mind, it could not possibly have
gone out mider J. Edgar Hoover.
Senator Cook. I just want you to know that this Senator feels that
some of the speeches and some of the comments which Mr. Hoover
made could have been considered very political at the time he made
them.
Mr. ScHEiDT. I understand your position and I am not so sure but
what I do not at least partially agree with what you are saying. But
I am talking about political in the context of a Presidential campaign,
Democrat against Republican.
Senator Cook. If one is political is he to be condemned only because
he is political at a specific time, or is the significance of his political
feelings and his political attitudes obvious at all times?
Mr. ScHEiDT. Well, that is sort of a theoretical question, a question
of what is political ?
In my mind, at least, there is no question about this being a very
partisanly political thing.
Senator Cook. I understand your sincerity about it. Do you think
the morale in the FBI has gone down as a result of Mr. Gray's being
there ?
Mr. ScHEiDT. I could not honestly say because I am not in touch
with the internal organization. I do not know. I would not be surprised.
Senator Cook. In regard to that I would like to put in the record a
letter from the Special Agent in Charge of the Michigan office in
regard to that. It was not sent to me, it was sent to Senator Roman
Hruska, who asked that it be put in the record.
573
[The letter referred to follows :]
Detroit, Michigan,
February 23, 1973.
Hon. Roman L. Hbuska,
U.S. Senator,
U.S. Senate Office Building,
Washington, D.C.
Dear Senator Hruska : I know that you and the other members of the Senate
Judiciary Committee will soon be considering the President's nomination of
L. Patrick Gray, III, as Director of the FBI. There have been a number of news
stories which have appeared in recent months alleging that the morale of the
Agents in the FBI has slipped under Mr. Gray and many FBI veterans are
unhappy as a result of the changes he has made since becoming Acting FBI
Director.
In this context I feel compelled to write to you as the Senator from my own
home State and give you my own personal views for whatever they are worth.
These news stories, which seem to come from a certain segment of the media,
have caused much concern and discomfort to me and the many other Agents in
my office, because of the basic untruth and deception involved.
As a 22 year veteran FBI Agent and in command of one of the Bureau's
largest "front-line" field offices, I believe I am in a position to have some insight
as regards the morale of the troops in the trenches of this outfit.
In my judgment, morale in the FBI has never been better or more healthy
as it has been in the past few months. Mr. Gray, who has visited all of our
offices, has greatly impressed all of us with his great enthusiasm and interest
in seeing that the FBI continues to fulfill its responsibilities in the best of the
Hoover tradition.
Again, in my opinion, Mr. Gray has clearly demonstrated the leadership
qualities that are necessary for an FBI Director and he has earned the genuine
respect and admiration of the Agents and other employees of this Bureau. Mr.
Gr^y hfis initiated many needed and most welcome changes in the Bureau which
have greatly strengthened the FBI and improved our performance. He has shown
us the examples of intelligence, dedication, hard work and, in short, the Fidel-
ity, Bravery and Integrity that are the cornerstones of our Bureau. I can assure
you that Mr. Gray is no "patsy" and while he has been patient, understanding,
willing to listen and completely fair in each situation, he has, nevertheless, been
firm and tough when and where necessary ; I have the imprints on my tail to
offer as proof of that.
Senator, Pat Gray would make one hell of a fine FBI Director. It would be
a privilege and high honor to continue to serve under him.
Sincerely,
Neil J. Welch,
Special Agent in Charge,
Michigan FBI Office.
Senator Hart. I think this record will reflect the man I knew in
Detroit, a person devoted to the application of a just discipline in the
community. Your service in the Detroit office, as head of that office,
was the sort that gave the Bureau the extraordinarily good reputation
that it has had.
Mr. ScHEiDT. Thank you, Senator.
Senator Hart. I think the Judiciary Committee is fortunate to have
had this full expression from a man who has headed the Bureau
offices in New York and in Detroit and who knows more about the
Bureau than anybody on this committee ever will.
Thank you very much.
Mr. ScHEiDT. Thank you, sir.
Senator Hart. At the direction of the Chairman, the committee will
recess subject to the call of the Chair.
[Whereupon, at 12:25 p.m., the committee recessed subject to the
call of the Chair.]
91-331—73 37
NOMINATION OF LOUIS PATRICK GRAY III
TUESDAY, MARCH 20, 1973
U.S. Senate,
Committee on the Judiciary,
Washington^ D.C.
The committee met, pursuant to recess, at 10 :50 a.m., in room 2228,
Dirksen Senate Office Building, Senator James O. Eastland, chairman,
presiding.
Present : Senators Eastland, Hart, Kennedy, Bayh, Burdick, Byrd
of West Virginia, Tunney, Hruska, Cook, and Mathias.
Also present: John H. Holloman, chief counsel, and Francis C.
Rosenberger, Thomas D. Hart, and Hite ]!kIcLean, professional staff
members.
The Chairman. The committee will come to order.
Mr. Gray, do you have today any knowledge about ]\Irs. Judy
Hoback ?
TESTIMONY OF LOUIS PATRICK GEAY III— Eesiinisd
Mr. Gray. Yes, sir, I have.
The Chairman. Could you comment on it ?
jNIr. Gray. "Well, Mr. Chairman, I can comment procedurally, cer-
tainly, under the new instructions that I have.
The Chairman. You mean from the President ?
Mr. Gray. From the Attorney General yesterday. Attorney General
Kleindienst.
Mrs. Hoback was interviewed by us on June 23. Then we contacted
her on June 26. Then we contacted her on July 11. Then there was an
interview on July 18. Then she was interviewed by the Assistant
U.S. Attorneys on July 25 and following that interview she contacted
us on August 1. August 2, and on August .^1.
The Chairman. Wlien did she testify before ii\Q grand jury?
Mr. Gray. She testified before the grand jury on July 6.
The Chairman. How many times did she state that she hid the
truth from the grand jury ?
Mr. Gray. Mr. Chairman, that is a matter of substance. It would be
contained within the report of interview, and I think that I have sot
to
The Chairman. Was it not three times ?
Mr. Gray. ]\Ir. Chairman, I will have to respectfully decline and
request that that answer be obtained by you, sir, or by the ranking
minority member, or the chief counsel to the committee, or the minor-
ity counsel, because that is a matter of substance and I am not per-
mitted to discuss that. Furthermore, there is a source of information
involved, an FBI source of information, in connection with that.
(57.5)
576
Senator Bayh. Would tlie Chairman jdeld ?
Would it be appropriate at this time to ask that Mrs. Hoback be
siibpenaed and provide that information herself? I think that is
critical.
The Chairman. It is critical and we do not have a quorum.
Senator Bayh. May I reserve the right to make that request when
the quorum returns ?
The Chahiman. Certainly.
Those raw files are available to me, and the ranking minority mem-
ber, is that correct ?
IVEr. Gray. That is correct, Mr. Chairman.
The Chairman. Under the new instructions it is up to us to do with
it what we want to, is it not, as long as we can give it to the committee
in executive session ?
Mr. Gray. Yes, sir; that is my understanding of my instructions.
The Chairman. Now you have it.
Senator Bayh. Well, Mr. Chairman, I do not want to interrupt
your questioning.
I would like to lay the basis for this request, if I might.
The Chairman. Sure.
Senator Bayh. If the Senator will permit me to proceed, and then
I will not ask questions and yield to him and wait my turn.
"Wliile I was in Indiana last week, early in the week as I recall,
it may have been the preceding weekend, my staff was approached by
people with the information that Mrs. Hoback wanted to make an
affidavit relative to her concern that information which she had given
the FBI had got to the Committee to Ke-elect the President. Without
going into all the details, this ended up in the newspapers, prior to my
return, without any comment at all, certainly with no comment directed
at the nominee.
It seems to me the thrust of the thing is, there is a leak someplace
down at Justice.
Now, if indeed the woman did lie to the grand jury, and I do not
in any way state it that way, repeating the Chairman's assessment of
what it says in those files, but if she admits she lied at one time, the
question is, how do yon determine when she is honest the other times ?
But if this woman is leading me, or anybody else, down a primrose
path, I would like to have her up here.
I would like to ask that the Hoback signed affidavit, notarized affi-
davit, of March 10, be put in the record at this time, if I might.
[The affidavit referred to follows :]
March 10, 1973.
My name is Judith Hoback and I reside in West Palm Beach, Florida.
In June of 1972 I was an assistant to the Treasurer of the Finance Committee
to Re-Elect the President. As a record custodian I was called before the grand
jury in the early part of July 1972.
Approximately ten days to two weeks later I voluntarily met with the F.B.I, at
my home in Bethesda, Maryland for a confidential interview. About one week
later I was contacted by the same agents and I met with one of the agents and
Earl Silbert and an assistant to Mr. Silbert, at the F.B.I, field headquarters.
Within forty eight hours of the second interview I was called into the oflice
of Bob Mardian. Ken Parkinson, attorney for the Committee to re-elect the Presi-
dent was present. Mr. Fred LaRue, special assistant to the president was also
present. Paul O'Brien, another attorney for the committee was also present.
Ken Parkinson said words to the effect of "Hear you have been talking to the
F.B.I."
577
To my knowledge, I had not informed any one of my interviews with the
F.B.I, and the interviews were in confidence and no one else knew.
Mr. Parkinson apparently was not aware of the first interview from the type
of question he asked, but was aware that I had been interviewed and stated that
he wanted to be kept abreast of what the F.B.I, wanted.
Judith Hoback.
The statement above was subscribed and sworn to before me this 10th day of
March 1973.
C. H. ,
Notary Public, State of Florida, at large.
Senator Bath. I ask that she be subpenaed to come up here and
tell us exactly what she did do and did not do, although, very frankly,
I think we have spent a whole lot of time pursuing this, which is pretty
far afield from the qualifications of the nominee. I think Mrs. Hoback's
presence is so closely related with INIr. Dean that, without his presence,
there is some question of relativity.
But inasmuch as this statement had been made, the affidavit has
been sworn to, and there is reason to believe it is less than accurate,
I would like to clear the air and ask that we subpena her.
The Chairmax. The motion was made. Without objection, so moved.
Senator Bath. Would the Senator from Michigan permit me just
to proceed on this one confined area?
The CHAiRMAisr. Well, let me ask another question.
When did Mr. Dean receive any information in regard to inter-
views with this lady?
INIr. Gray. As far as any information from the Federal Bureau of
Investigation, he would not have received that until October 12, con-
cerning this particular interview to which she has reference, the July
18 interview. On the interview with the assistant U.S. attorneys, no
302 report of interview was prepared. The report of interview that
we prepared is the one of July 18, 1972.
Senator Cook. Would the Senator yield just one moment?
I wonder if the stenographer might show, because of the request
of the subpena, the fact that there was a quorum and the fact that
there was no objection.
The Chairmax. I think we ought to invite two more to testify.
I think they ought to be subpenaed.
Senator Bath. Who are they, Mr. Chairman?
The Chairman. Thomas Lumbard, Tom Bishop.
Senator Bath. Mr. Chairman, I second your request.
The Chairman. I did not make a motion.
Senator Bath. I will be glad to make the motion.
The Chairman. Without objection, so ordered,
Now, we have a letter from Mr. Lumbard. We will not read it but
put it in the record.
[The letter referred to follows:]
GoLDFARB & Singer,
Washington, D.C., March 14, 1913.
Hon. James O. Eastland,
Chairman. Committee on the Judiciary,
'New Senate Office Building, Washington, B.C.
My Dear Senator Eastland : Your Committee has invited me to testify at
its hearings on the nomination of L. Patrick Gray, III to be Director of the
Federal Bureau of Investigation. I orally accepted that invitation yesterday.
Having reconsidered, I have orally informed counsel for the Committee, and I
now wish formally to notify you, that I respectfully decline your invitation. If,
578
however, on consideration, the Committee still desires my testimony, I shall be
available to subpoena and shall appear hefore the 'Committee if siibixjenaed.
I hope that by declining this invitation I may avoid embarrassment both to the
Committee and to myself. Any factual knowledge I could oontrihute to your in-
quiry would be both extremely peripheral to it, and not particularly probative
even of a material collateral issue.
I have never met L. Patrick Gray, III and am acquainted with his reputation
and Qualifications for the position in question only by hearsay.
My knowledge of the investigation of the Watergate affair, which appears to
have motivated the invitation from your Committee, is only slightly more sub-
stantial. I trust you will agree that it does not justify the Committee's attention.
In March, 1972, G. Gordon Liddy recruited me, among others, to do legal
volunteer work for the Nixon campaign. As a member of that group of lawyers,
1 was contacted on about April 14 hy John W. Dean, III, who needed about one
■day a week of volunteer legal work to make sure that all primary campaign
finnneiai report requirements of the primary states were complied vvith as to
such personal reports and affidavits as might be required of the 'President. This
primarily entailed the reading of state statutes and then contacting the offices
of the appropriate authority in each state, both to check on what reports were
required and to obtain the appropriate forms to be filled in by Mr. Dean's staff
and routed to the President for signature. As this work paralleleil similar work
being done by Mr. Liddy and his staff at the Committee for the Re-election of
the Pi-esident, it from time to time involved coordination with them, just as such
matters require coordination between the local campaign staff of a Senator or
Congressman running for re-election, and his Washington office. This work was
done in vacant offices at the Executive Office Building from about April 17 until
June 16, when previous professional commitments in New York and Colorado
required that I drop these duties until my return in September. At that time I
undertook to do some library research work for Mr. Dean's office, but the press
of business necessitated that the project, essentially a similar effort as to state
reports for the November general election, he done hy someone else.
In the course of my work for Mr. Dean I had occasion to see him only twice
that I can recall, once when I began work and once wiieu Mr. Luldy had droitped
in at his office and I put my head in the door to say hello. I worked with, and out
of the office of, his assistant, David Wilson. At no time in this period did I have
occasion to enter the offices of the Committee for the Re-election of the President.
Dux-ing the entire pre-indictment period of the Watergate investigation I was in
Aspen, Colorado, and had no contact with any of the people involved with respect
to it or any of the matters I have mentioned. I have no knowledge, direct or
indirect, of any coordination between Mr. Dean and his staff, and Mr. Liddy and
his staff, except as it related to the matter of insuring compliance with state
financial reports, as to which my function was to ascertain the requirements of
the state laws as interpreted by the state authorities.
. Accordingly, Mr. Chairman, it appears to me that it would be a questionable
use of the time of your Committee for me to appear before you. In the light of
my extremely tenuous connection with any events relevant to your hearings,
such an appearance would tend to create the impression that the Committee was
engaged in a fishing expedition and that I, a rather small fish, was hungry for
the personal publicity such an appearance would entail. Since the facts lead me
to believe that such an impression would be both embarrassing to myself and
unfortunate in its effect on the success of your hearings, I have concluded that
I shovdd decline your invitation, hut that I should lay the facts before you by
letter so as to allow the Committee an opportunity to decide whether it still
desires my testimony.
I am, sir,
Respectfully yours,
Thomas Lumbard.
The Chairman. Proceed.
Senator Bath, Mr, Gray, in the conversation that I had with the
chairman, he expressed concern that perhaps jN'Irs. Hoback had been
less than honest in her affidavit. That caused me to believe that I had
relied on her sworn testimony and released a statement that might be
considered by some as damaging to your case, although, to me, as I
579
look on the event now in hindsight, it would seem, to me, more directed
toward what use was made of this information after you had given it
to Mi: Dean, and 3'ou have no way of controlling that, sir.
With that in mind, I wanted to have a chance just to see to what
extent she had been honest with the committee. I wanted to have that
background. Therefore the request I made yesterday, I ask you if you
w^ere aware of it. Yesterday I called your office and spoke with your
executive assistant, Mr. David Kinley, and requested the FBI 302 file
on Mrs. Hoback, under the terms of the agreement earlier, the oiler
made by you. Were you familiar with the fact that I did call Mr. Kin-
ley and ask for that 302 file ?
Mr. Gray. Yes, sir, I was advised. Senator Bayh, that you had
called.
Senator Bayh. Were you the one who advised Mr, Kinley that the
Attorney General had changed the ground rules ?
Mr. Gray. Yes, and ]Mr. Kinley was checking with me to make abso-
lutely certain that this was the case. In fact, he was sitting in my office
at the time I I'eceivecl the call from the Attorney General, "\'\'lien I
wrote down the instructions, he was aware of them, but he wanted to
check with me anyhow because this was a U.S. Senator calling for the
files under the previous offer that I had made.
Senator Bayh. I appreciate that. You had offered earlier to let us
look at all those files. I for one would have liked nothing better than
to explore some of them. But realizing the volume involved, and
realizing that none of our staff people, even those with cleared security,
had access to them, I did not avail myself of this invitation.
This seemed to me to be an area where there was a specific problem
involved, a specific area, and if I may say so, I thought your interest
was involved, a narrowly defined area, and that is why I made the
request. Mr. Kleindienst was the one who issued this order?
^Ir. Gray. Yes, sir ; he called me. If I might comment, with regard
to some of these allegations, a host of allegations have been fired at me.
I think that is a part of the political process and I just have no further
comment on that. I received those orders. Those are my orders and
those are the orders that I have to carry out, Senator.
Senator Bayh. I understand that, sir.
I will say that I do not think those orders are helpful to you at all.
I think you have been direct and open with this committee. Others
have not been.
Were those orders given to you orally, or written by the Attorney
General ?
Mr. Gray. No, sir; they were called to me on the telephone. You
know, Senator Bayh, I occupy a position in which I serve as a Bureau
Chief in an executive department of Government. I serve at the pleas-
ure of the President. I have to take my instructions and orders from
the Attorney General and the President. The various Presidents —
I think my earliest recollection is Franklin Roosevelt — have stated that
they have relied heavily upon the FBI to give them the facts. This
goes through Mr. Eoosevelt's Presidency and all the succeeding Presi-
dencies. It is a pretty important position. I do serve at the pleasure
of the President and I do have to accept these orders and carry them
out. sir.
580
Senator Bayh. I understand that. I am not being critical of you.
This is an instance in which you are not being requested to give facts
to the executive, but to deny facts to the legislative branch. Is there a
distinction there?
Mr. Gray. I do not know how we would make that distinction in
view of my position as a Bureau Chief, and particularly the Chief of
the Federal Bureau of Investigation, and in view of the long tradition
that it has had with regard to the President's reliance upon it. So I do
not know how we would make that distinction.
Senator Bayh. Would you tell us the specific contents of the
instructions ?
Mr. Gray. The orders that I received ?
Senator Bayh. Yes.
Mr. Gray. Yes. I was to make the files available to the chairman of
the Committee on the Judiciary of the U.S. Senate, to the ranking
minority member, to the chief counsel, Mr. Holloman, and to the
minority counsel.
Senator Bayh. Did you get the impression that this was Mr. Klein-
dienst acting on his own or are these orders received from the Presi-
dent?
Mr. Gray. I had no impression one way or another, sir. I said I will
carry out those orders.
Senator Bayh. In looldng at the responsibility of the Federal
Bureau of Investigation, is your responsibility to the Attorney Gen-
eral or to the President? This is not the average mine-run situation.
You have a rather significant confrontation between the executive
and legislative. Perhaps we ought to look at the kind of precedent we
have here.
Mr. Gray. Well, I think I am sitting in the middle of just that kind
of a confrontation. And as powerful as the FBI is, the forces that are
at work here might calculate to be far more powerful than the FBI.
In connection with this order, I do note that there are two com-
mittee staff members who are now permitted to have access to this file,
which was not, of course, permissible under the offer that I made to
any senator.
Senator Bayh. I am just trying to see the ground rules that you
might operate under when the tim.e comes when you are the full
Director.
We have these examples here, given this situation. The Attorney
General makes a request, not the President. Mr. Dean made the re-
quest, not the President, for some of this very sensitive information.
The Chairman. He made that request on behalf of the President,
did he not?
Senator Bayh. That is why I am trying to see whether the Attorney
General made this request on behalf of the President, or on his own.
The Chahiman. Yes, but the statute makes him subject to the At-
torney General.
Senator Bayh. I do not think it is an irrelevant question to ask in
regard to Mr. Kleindienst, with all due respect.
Did Mr. Kleindienst suggest that this was an order from the
President ?
Mr. Gray. No, sir ; he did not say that to me.
Senator Bayti. Did he give any reason for the fact that the files
would be available to two members of the staff ?
581
Mr. Gkay. No, sir ; and I did not question liim at all. I took tlie order
and that was it.
Senator Bayh. Were you at all concerned about the fact, with all
due respect to the very distinguished members of the committee who
are given access to this information, that it is conceivable that they
might view certain questions differently from some other members,
and those looking at these questions differently would have no oppor-
tunity to view the files themselves ?
Mr. Gray. Senator, I do not think that this is a question for me to
respond to because you are discussing U.S. Senators, and I do not
know U.S. Senators well enough to be able to make that kind of
response.
I would respectfully decline to answer that question, sir.
Senator Bayh. You have sat here for more hours than I had hoped
you would sit here.
Mr. Gray. Yes, sir ; more hours than I had hoped.
Senator Bayh. You have more than reasonable perception. I think
you have observed that there are Senators with very different opinions
from the two honorable and distinguished Senators who have been
given access to the information. Would that be a correct observation ?
Mr. Gray. Senator Bayh, I will have to say those are your words.
I do not have that kind of feel for all of the nuances that go on within
the U.S. Senate or within the Committee on the Judiciary. I really
cannot respond to that kind of question.
Senator Bayh. Mr. Gray, your candor is showing.
^Ir. Gray. I think. Senator, every Senator here is trying to discharge
his constitutional responsibilities, and I am trying awfully hard to
discharge mine.
Senator Bayh. I would be the last to suggest that the two very dis-
tin^iished Members who might differ with me on an issue are not
trying to discharge their constitutional responsibilities. I am trying
to figure out how you make it possible for everyone to get access to the
information.
These two men in no way of their own volition have denied access.
The chairman has been very kind. Any time I have made a request for
information to help in any of a number of different investigations he
sits there himself or the chief counsel sits there and goes through a
voluminous file. That is why it seems to me to be a rather strict order.
I will not ask you to discuss this further.
The Chairman. You told me, given proof within those files. There
is no opinion in them. They are just statements of what people say.
Senator Bayh. I am particularly concerned about this one case, Mr.
Chairman.
The Attorney General can give an order to you that the Director of
the Federal Bureau of Investigation is to deny to Senate committee
members access to information, and yet no such order covers "Wliite
House staff members. Wliere do you draw the line ?
Wliy should the various Wliite House people, Magruder, Dean,
Liddy, people like that, why should they be treated differently from
U.S. Senators as far as your judging when you get a legitimate order
from the Attorney General ?
Mr. Gray. Once again, that is a very difficult constitutional ques-
tion. It is based on the separation of powers and the manner in which
582
tlie President desires to operate the executive branch of the Govern-
ment.
In this particular case, Senator Bayh, I made the offer to the U.S.
Senators and now I have received some different instructions.
Senator Bayh. As I have said, I do not think these instructions are
helpful to you.
I wonder why anyone who is advocating the nomination of someone
would put him in a position like that. That is an unanswered question
and certainly one that you should not try to answer.
This is not the first time that a Congress and a President have been
on different sides of an issue under investigation. I wonder where Pat
Gray would be if we run into another kind of confrontation and you
are Director of the FBI. Suppose the Senate is conducting an investi-
gation and we need information to make an intelligent judgment on the
issues that we are interested in and the FBI has this information and
the Senate requests it and the President says you camiot get it. IMiere
do you draw the line ? The President ? The Senate ?
Mr. Gray. I think, probably, I can only speculate on it. But I have
thought that as the result of these particular hearings, there may be
some legislative action. I do not know what is going to occur with re-
gard to the position of the Federal Bureau of Investigation. I have
thought about it. This has all arisen really because the situation was
changed and now requires confirmation of the Director of the FBI.
Heretofore, FBI files were held as tightly as they could be held. I made
an unprecedented offer and stated at the time that it could not be used
by legislative committees in the future to obtain access to the FBI's
working files.
I really do not know what is going to come out of this. I am going
to have to, as I said earlier, try to work my way through this mine-
field, working with the executive branch and the legislative branch
of our Government. I do not know the answers to those questions at
this moment.
Senator Bayh. Did you talk to the Attorney General or to anyone
else about the offer before you made it ?
Mr. Gray. I think from the very beginning of my conduct, and I
should say the FBI's conduct of the investigation under my direction, I
realized as the information came along that this would be a very, very
important case. I think I testified earlier I would have to be a naive
jackass not to realize that. I mentioned to the Attorney General, from
time to time, that it was my opinion and my belief and my feeling that
this action should be taken.
But if you ask me did I ever put the question to him, "Mr. Attorney
General, I am going to make this offer and I want your approval," the
answer to that question. Senator Bayh, is "No."
Senator Bayh. But he was aware of your feeling that this offer
should be made ?
Mr. Gray. Yes, sir ; and I think he would testify to that, sir.
Senator Bayh. And he did not object ?
Mr. Gray. Xo, sir: I received no orders to the contrary from him.
Senator Bayh. Do you care to speculate as to what happened be-
tween then and now ?
Mr. Gray. No, sir; I have no way to account for that, because of the
furor that has been generated as a "result of this offer, with the ACLU
583
getting after me. Professor Elliif getting after me, and the rights of
privacy being involved, have precipitated these apprehensions on the
part of people.
Senator Bayh. I think such apprehensions are well-founded under
normal circumstances.
But I would have been a lot more comfortable, and they a lot more
consistent, if these apprehensions had been applied across the board
to TVliite House assistants as well as to Senators.
I realize that in the position you arc in you are responsible to tin;
President.
Mr. Gray. Senator, I am not really ashamed of that responsibilitv —
because, you know, as a Bureau Chief, and the FBI is in the executive
branch. 1 ha^e that responsibility. I serve at the pleasure of the Presi-
dent, who is the Chief Executive Officer of this Nation. I am carrying
on a long tradition in the Federal Bureau of Investigation when I
serve thePresident, when I cooperate with the President. When I see
the research that has been done to show that successive Presidents have
relied very heavily on the FBI to give them tlie facts, I think it was
right and it was proper to do that.
Senator B-ayh. I am struggling witli this in my own mind. I think
that if I were sitting in your seat, and the President of the United
States had said, Mr. Director, I need to have this information. I wcukl
have been over there in 15 minutes and I would have had it there. But
if ]Mr. Dean or Mr. X or JSIr. Y made that request, I do not know
whether I would have given it to him. Certainly not without it being
in v.-riti]ig. and if I had known that the IVh.ite House assistant that
requested the information was also involved in all these other contacts
invoh^ng the Watergate, then I might have done something a little
differently.
Is there a way in the future to protect yourself and the FBI's credi-
bility from some ^y}^Ate House assistant taking information and per-
haps trvins: to keep justice from being done ?
Mr. Gray. You laiow, what we did here in the beginning, as I testi-
fied earlier, we held it close for a long period of time, until we were sure
of where we were going and what the implications were. We were very
careful about putting out any kind of information. This is one step
that you can take, and certainly we took that step in this case. Senator
Bayh.
Senator Bayh. Mr. Gray, when you say you held it close, does that
mean vou held it away from Mr. Dean ?
^Ir.' Gray. Yes. sir." I did not talk about any substance with Mr. Dean
at all. He did not ask me for any substance. The first request I had for
substance was in that conversation with regard to the preparation of
the memorandum summarizing the status of the case.
Now, this information — and I explained this before— this informa-
tion at workins: aarent level was being exchanged back and fortli all
the time with the assistant U.S. attorneys. They were working with the
assistant U.S. attorneys in the grand jury and these investigative
reports were beine: delivered to the Assistant Attorney General of the
Criminal Division. This is true. This is our normal standard operating
procedure.
Senator Baytt. As I recall, there were some 80 reports given to
Mr. Dean. Is there any way you can differentiate between giving
584
reports to a White House aide who may be wearing a number of
different hats and giving specific reports to the President?
Mr. Gray. I think you can.
I think there is certainly a practical way to do that. If in any of
those I had seen positive, affirmative information that any Wliite
House individual then on the staff was involved at any time, I think
I probably would have gone right to the President.
You know, this is the kind of thing that you must make a judgment
on. It is a thing that depends on a case-by-case analysis.
Senator Bayh. Were you aware of Mr. Dean's relationship with Mr.
Magruder and Mr. Liddy ?
Mr. Gray. Not in those early days, no, sir.
Senator Bayh. When did you become aware of that relationship?
Mr. Gray. I am trying to remember.
I think the first indication I had was undoubtedly a note on the tele-
type on 7-24; however, it did not spell out any relationship at all.
The first affirmative knowledge of that was when the FD-302 was in
my possession.
Senator Bayh, Wliat is the FD-302 a^ain ?
Mr. Gray. That is the report of interview, sir.
The Chairman. When was that?
Mr, Gray. That interview was conducted, as I remember, on the
20th day of July.
Senator Bayh, How many reports were forthcoming to Mr. Dean
after you had seen that 302 ?
Mr. Gray. I am sorry, sir ?
Senator Bayh. How many of the 80-some reports went to Mr. Dean
after you had seen the FD-302 that gave you reason to know of the
relationship between Mr, Magruder and Mr. Liddy?
Mr. Gray. I think that those went — yes ; I remember that. Ten in-
vestigative reports went over on October 12, 1972.
Senator Bayh. And yet you were aware of the relationship some
time in July ?
Mr. Gray. I was not aware of any relationship. I was aware of what
was stated in Magruder's 302 to the effect that he had received a rec-
ommendation from Mr. Dean and Mr. Krogh, I think it was, regard-
ing the employment of counsel there.
But once again, I am getting into substance and I will have to stop.
I have gone beyond the point I should have gone under my instructions,
but that is my recollection.
Senator Bayh. Mr. Chairman, I yield back. I did not intend to get
involved in this long discussion at this time.
Thank you, Mr. Director.
Senator Hrtjska. Mr. Gray, you were asked whether you worked
for the President, for the Attorney General, or for the Senate or for
the United States, Is it not true that a full reading of the statute
places the responsibility for your office and its functioning under the
immediate jurisdiction of the Attorney General ?
Mr, Gray. Yes, sir, Senator Hruska ; this is correct. That is the stat-
utory placement and my other testimony is to the effect that through-
out the successive Presidencies that I researched and have analyzed,
I found that Presidents have stated that they rely heavily on the FBI.
Senator Hruska. And your duties are to undertake to discharge and
comply with the orders of the Attorney General, and they are mainly
585
in the investigative field and have no relation to any formation of con-
clusions or any prosecutorial conduct ; is that not true ?
Mr. Gray. That is correct, sir.
Our responsibility is to investigate.
Senator Hruska. '\'Vlien you were asked about your concern why an
order would go forward to allow certain members of the Senate to
have access to the files and other members would not have access, that
really is not within your realm masmuch as you are called upon to get
any order along that line in conformance with the Attorney General's
order ; is that not correct ?
Mr. Gray. That is correct, sir, but there do come occasions where
you have an opportunity to discuss a situation with the Attorney Gen-
eral. But I had no opportunity to discuss this situation with him at all.
Senator Hruska. In general, 3^ou have told us about your desire to
protect the sources that the FBI resorts to, and that is always para-
mount in your guarding of the working files, the raw files. That is what
we have been led to believe.
Mr. Gray. That is correct, sir. Probably one of the strongest criti-
cisms that I have received to date is that I have made it difficult in the
future for the Federal Bureau of Investigation to receive information
from sources. I think that the unique nature of this case takes it out of
that type of area.
Now, we may have some fence building to do with some of our
sources throughout our 59 field divisions. I do not know. That remains
to be seen, but I have been criticized on that basis.
Senator Hruska. The first interview was held by FBI agents with
Mrs. Hoback on June 23 ?
Mr. Gray. Yes, sir ; that is correct.
Senator Hruska. And that was the occasion wlien the agents were
present and a representative of the Committee To Ee-Elect the
President ?
Mr. Gray. That is correct, I believe a representative may have been
present. That was very early in the game. That was on the 23d and
that was for identification of pictures, but I think, Senator, you would
have to check the 302. You would have to look at that 302.
Senator Hruska. I think I recall testimony in the record to the
effect that there was unhappiness that there were representatives
either of the "White House present at FBI interviews when it was a
member of the staff of the "V\^iite House that was interviewed and un-
happiness by some of the witnesses who were on the staff of the Com-
mittee To Ee-Elect the President, and it was because of that unhappi-
ness that contact was had with the FBI and a separate interview was
held for such witnesses, and that transpired here — I believe you testi-
fied there was an interview with Mrs. Hoback in her home, and when
did that occur, which FBI agents ?
Mr. Gray. I do not know that I testified that there was an interview
with Mrs. Hoback in her home. Senator.
Senator Hruska. Maybe it was she who said it in her affidavit. She
says about 1 week later, approximately 10 days to 2 weeks after the
grand jury, I voluntarily met with the FBI at my home in Bethesda,
Md., for a confidential interview.
I am not going to ask you to divulge your sources, INIr. Gray, but
who was present at that interview ? ^\nio conducted the interview and
who was present there?
586
Mr. Gray. FBI agents were present there, Senator Hriiska.
Senator Hruska. And Mrs. Hoback was present ?
Mr. Gray. Yes.
Senator Hruska. Were others present besides the FBI agent and
Mrs. Hoback?
Mr. Gray. Senator, if I could, I respectfully decline to answer that
question, because I feel it is substance and I am under a prohibition.
Senator Bayh. Woidd the Senator yield for a question?
Does that mean that if a member of tlie Re-Elect the President
Committee was sitting there at the time, that we are denied the op-
portunity to know that because it is substantive ? Is that what we are
hearing here?
Senator Hruska. I did not say anything about Committee on Ee-
Election of the President. I asked if any other person besides the FBI
agents and IMrs. Hoback were present in ^Irs. Hoback's home at the
time the so-called confidential interview by FBI agents was conducted.
I said nothing about any committee on Presidential re-election or
anybody.
Senator Bayh. I do not ask the question to be argumentative. I just
want to make sure we know what we have here.
This lady has said there was a leak. If she did not tell anybody, and
the FBI were the only other people present, then her affidavit would
lead one to believe that the leak came from the FBI. If there was
someone there from the Connnittee to Re-Elect the President or some-
one else, that is something quite different.
Senator Hruska. The imagination of the Senator from Indiana gets
away from him.
There is this statement :
"To my knowledge, I had not informed anybody of the interviews
with the FBI and the interviews were in confidence and no one else
knew."
It is a simple question to find out if there was somebody else present
m the room when that happened. Then it would bear upon the recol-
lection of Mrs. Hoback.
Senator Bayh. I am on your side. But we cannot get the answer
from Mr. Gray because it is declared substantive. That is why I raise
the question. I am not saying your question is out of order. I want to
get the answer, too.
Senator Hruska. All I am asking of the witness is if he knows. If he
does not know, or if he feels he is not competent to testify', I am not
going to try to tjludgeon it out of him.
Senator Bayh. That is a lightweight bludgeon.
Mr. Gray. I think I would respectfully decline, if I may. Senator
Hruska. and invite the chairman and ranking minority member and
chief counsel and minority counsel to consult the FBI files.
Senator Hruska. Well, I do not think that is any great loss. She
is on her way up here to testify and she can be asked those questions
and can answer them if she wishes.
There is one other thing that is rather impressive. Mrs. Hoback is
said to have reported to the press, which had the initial storj^ on her
affidavit, and she had, of course, recited that "Within 48 hours of
the second interview, I was called into the office by Mardian." She did
not say he was present, but others were present. She said in a telephone
587
interview, "You do something in confidence and it shatters you a little
bit to learn that is being broken."
That happened in July. You have indicated and testified that she
later contacted the FBI on August 1, August 2, and August 31.
Would that lead a reasonable person to believe that she was not very
shattered if she contacted the FBI and gave them, or said she would
give them, further information ?
Mr. Gray. Xo, Senator. We did not think so.
Senator Hruska. Mr. Gray, I asked you who was present at the con-
fidential mterview in Mrs. Hoback's home. Could you tell us who was
not present? Could you tell us tliat members or representatives of the
Committee To Ee-Elect the President were not present ? Could you tell
us what the fact is on that point ?
Mr. Gray. Senator Hruska, I must respectfully decline to answer
that question because it does go to substance and names of people and
that information is in the file which is available to you.
Senator ^Mathias. Would the Senator yield at that point to let me
take another try ?
Senator Hruska. I am glad to.
Senator Mathias. Would it be possible for you to tell the committee
how many people were present when Mrs. Hoback was interviewed
in Bethesda. Mel., and how many of those present were agents ?
;Mr. Gray. Senator ]Mathias, I can say that there were two agents
present. Beyond that I would respectfully decline, because the file does
reveal it and it is substance. It does involve people and I would like the
committee to have the information through the chairman and the rank-
ing minority member, because those are my instructions.
Senator Mathias. I think that is an important contribution because
at least we know two of the people present were agents, and if she
testifies there were more than two present, we can look elsewliere.
Senator Hruska. One other point I think would be of interest. It
has been assumed, I think, that Mrs. Hoback contacted the FBI to
indicate and register her displeasure that a member of the staff or
representative of the Coixunittee To Ee-Elect the President was present
at that initial interview on June 23. "V^Hiat is the fact in that regard?
Was it she or someone else who contacted the FBI to arrange for this
confidential interview ?
Mr. Gray. Of Mrs. Hoback ?
Senator Hruska. Yes.
]Mr. Gray. Was it someone else who contacted the FBI to arrange
for that interview ?
Senator Hruska. That is the question.
Mr. Gray. Senator, once again it is substance, and I must respect-
full v decline. That information will be contained in the file.
Senator Hruska. Again, I say she will be commg here soon and we
can get that information from her. I thought it would be helpful if Ave
could get that.
In asking the question I do not want to impose on your patience and
the necessity of your declining to testify. After all, that does not, in my
judgment, go to the substance of the 'file. I did not ask for names. I
simply asked for the presence of people in that room, whether there
were more than just those involved, also whether it was she who con-
tacted the FBI or someone else.
588
Again, I did not ask for names. I would not intend to, because who-
ever it was, if it was somebody else, would be entitled to protection as
to sources that might be available at a later time for the FBI.
Mr. Gray. That is correct. Senator.
Senator Hruska. I have no further questions at this time, Mr.
Chairman.
Senator Hart. Mr. Gray, you have explained the obligation which is
yours at the Bureau to respond to requests from the White House and
from the Attorney General. Let me turn back to a request you thought
was improper and to which you would not respond. That is the request
made to you for law-and-order campaign information data.
I will not ask you to distinguish why in this case you thought you
did not have to respond, and in some of these other cases you felt you
should.
You have indicated and supplied for the record the request that was
relayed to the Bureau field office.
First, there were newspaper stories at the time that blamed Mr.
Erickson's Deputy. Now, Erickson was the Deputy Attorney General,
and his associate, Mr. Santarelli, was named as the person who had
improperly, I think you would have characterized it, asked the Bureau
to provide this information.
Now, the material that you sent us indicates that it was Mr. Erickson
himself who sent the memo to you asking for the Bureau's aid. Is that
correct ?
I refer to the initials on the memorandum.
Mr. Gray. That is the memorandum of September 8, 1972, from
Ralph E. Erickson, Deputy Attorney General, to me, and his initials
do appear there to the left of that memorandum — his name.
Senator Hart. Would that not lead to the conclusion that it was
he who asked, not Mr. Santarelli ?
Mr. Gray. I do not know the actual person who sent that material
down to the Federal Bureau of Investigation. But certainly when we
would see that, I would say that those are the Deputy Attorney Gen-
eral's initials and that that piece of paper was coming from the Office
of the Deputy Attorney General. I am sure that my people interpreted
it that way. Senator.
Senator Hart. All right.
Now, once you found out about this business, did you ever tell Mr.
Erickson that he was wrong or that you felt he was wrong ?
Mr. Gray. I do not remember that I ever did tell Mr. Erickson that
he was wrong. I know that there were — and I am trying to remember
now — discussions regarding who should have gathered this informa-
tion. We had that kind of discussion, I laiow, certainly in the Depart-
ment, but as to time and place and with whom, no. I just have that
Irind of fleeting recollection and I remember the remark being made
that this should have been performed by the U.S. attorneys.
Senator Hart. The reason I ask the question is that in your first
appearance you made very clear that when you learned about this you
hit the ceiling.
Mr. Gray. That is correct, sir.
Senator Hart. And the implication was that you would have made
clear to anybody that was involved in the operation that you thought
it was improper.
589
Mr. Gray. I did not go around outside the Federal Bureau of In-
vestigation, Senator Hart, putting people on report, foecause I think
that everybody knew that from the statements that had been made, as
I recall. I think there was a report that the White House had made the
statement that this was an improper utilization of the FBI.
Senator Hart. But that was a month or more later, about the time
Time magazine broke the story ?
iMr. Gray. That is correct.
Senator Hart. Wliat did you do before Time magazine broke the
stoiy to make it clear that in your judgment it was wrong?
Mr. Gray, Well, I said to someone in my office, within a staff meet-
ing that we had at that time, and in discussing it with the Associate
Director, I inquired also at that time as to the authority to release
teletypes. I know I asked specifically, as I recall it, who has authority
to release teletypes within the Federal Bureau of Investigation and
whether that authority includes Assistant Directors ? I did not launch
any full-scale inquiry about this matter until the information was
made public knowledge, because by the time I received this infor-
mation the exercise had already been conducted, the material had been
put together by the field offices, sent in, and the material had been
delivered to the Deputy Attorney General's office.
Senator Hart. Well, if you issued any directive to an individual or
to Bureau personnel generally, in respect to this, would you let us have
it for the record, if you did ?
Mr. Gray. I do not recall that I did. Senator Hart.
Senator Hart. In your earlier appearance I asked you whether
there was opposition within the Bureau to performing this task, this
job of getting data which would be useful in political plans, and you
indicated in general that it had been considered routine by those who
had responded to the teletype.
Now, in this connection, the Bureau's own summary, dated January
12 of this year, on this incident, which you supplied us, and which
had earlier been supplied to Senator Er^dn and his subcommittee, says
on its first page that when your aide, Mr. Kinley, approved the memo-
randum, the data collection, and sent it on to Mr. Thomas Bishop,
head of the Crime Eecords Division, for implementation, that Mr.
Bishop went up to your deputy who was acting in your absence and —
I am quoting the memorandum — "discussed the matter with Mr. Felt."
Your memorandum reports that only afterward, after he checked with
him, did Bishop have the teletype request sent to the field office.
Now, I think this is important because there were news stories
last fall, including one in the Post, on November 4, which I will
supply for the record, that said that you were furious because Mr.
Bishop had failed to clear the request with either you or Mr. Felt
before sending it out. Now, we have this Bureau review summary
which suggests very strongly that Mr. Bishop did — I will not say
question this or get clearance— but in any event, did go to Mr. Felt.
So, specificallv, let me ask you whether Mr. Bishop raised any ques-
tion with Mr! Felt or anyone else about the propriety of using the
Bureau in this manner? If he did what was he told ?
Mr. Gray. I asked that question specifically. Senator Hart, and I
was advised that the discussion that you refer to in the memorandum
91-331 — ^73 38
500
there pertains to the Division within the Federal Bureau of Investiga-
tion which should have handled this request. Wliether it should have
been the Training Division or the Crime Research Division. And Mr.
Felt made the decision and told Mr. Bishop that it was his Division
that should do it. I specifically asked if there were any protests made
at that time and I was told there were none.
Senator Hart. Whom did you ask ?
Mr. Gray. Mr. Felt.
Senator Hart. Did you ask Mr. Bishop ?
Mr. Gray. I asked Mr. Bishop and I think this was during the — I
should not say I asked Mr. Bishop, I should say when the inquiry was
conducted into this, the inspectors who were conducting the inquiry
must have asked this question because the statements that they made
indicated clearly that there was no objection voiced, that this was
considered to be a bona fide request and one that should be responded
to.
Senator Hart. Well, you made very clear in your first appearance
that this incident outraged you and you went right up the wall. But
you never talked to Bishop about it ?
Mr. Gray. I cannot recall specifically talking with Mr. Bishop at
that time, because I did not feel it w^as incumbent upon me to go jump
on him. I wanted to talk with my own personal staff. I talked with Mr.
Felt, and I just cannot remember with certainty whether or not I
spoke with Mr. Bishop at that time.
Senator Hart. Can Mr. Kinley provide us any information ?
Mr. Gray. Senator Hart, I think I ouglit to be the witness. I am
testifying here. It is my nomination which is at stake and I do not
know that David is going to be able to supply anything other than
what I have.
Senator Hart. Well, David approved this.
Mr. Gray. That is correct, he got the — he got the materials all
together but at no time did Mr. Kinley or Mr. Felt see the teletype
that went out. This is going to show up as a matter of the results of the
inquiry that I directed.
Senator Hart. Did not Mr. Kinley always initial on the
teletype
Mr. Gray. No, sir ; because he did not see the teletype. That is one
of the thmgs I am inquiring into, how that got out. Does an Assistant
Director of the Federal Bureau of Investigation have authority to
release a teletype without clearing it with anyone and the answer I
got was affirmative.
Senator Hart. Could I ask JSIr. Kinley if he was conscious of this
rhubarb and whether he furnished or is av/are of any memorandum
that accompanied the transmittal of the field reports back to the Jus-
tice De]:)artment ?
Mr. Gray. This first came to our attention when one of my young
special — as I recollect^
Senator Hart. I wonder if you would permit Mr. Kinley to answer
my question ?
Mr. Gray. It is a little awkward for me to refuse, Senator Hart, but
I think I am the one that has to carry the water up here. It is me that
you are judging, but I do not have any objection.
Senator Hart. We are trying to fijid out as much as we can about a
point
591
Mr. Gray. I would like the record to clearly show that I thmk I am
the fellow that is carrying- the hod up here. These men are my staff
assistants. It is my credibility, my ability to discharge this responsi-
bility. I ha-^ e no objection to his answering the question^ no, sir ; but I
just want the Committee on the Judiciary and the U.S. Senate to know
I am the man that is carrying- the hod.
Senator Hart. I think it contributes to your good judgment that you
allow Mr. Kinley to answer the question.
Mr. Gray. Go ahead and answer.
TESTIMONY OF DAVID D. KINLEY— Eesumed
Mr. Kinley. Would the Senator repeat the question ? I have lost the
question in the discussion.
Senator Hart. Did Bishop ever come to you about this ?
Mr. Kinley. No, sir.
Senator Hart. Did anybody raise a question ?
The Chairman. Wait a minute. Stand up, please.
[Mr. Kinlej^ was sworn.]
Senator Hart. Did anyone ever mention to you that Mr. Bishop had
protested or raised a question ?
Mr. Kinley. No, sir. In fact, Mr. Felt mentioned exactly the
opposite.
Senator Hart. Mr. Felt said that Mr. Bishop had what ?
Mr. IviNLEY. Mr. Felt reported to me that the subject and discussion
he had with ]Mr. Bishop was whether Mr. Bishop's Division should
handle the request or whether the Training Division of the Bureau
should handle the request.
Senator Hart. Now, am I correct that your initial is on the recom-
mendation that the materials that had been accumulated from the field
to be sent back to the Justice Department ?
]Mr. Kinley. That is correct.
Senator Hart. And is the "F" on that same memorandum the initial
of Mr. Felt?
Mr. Kjnley. That is correct.
Senator Hart. Now, did Mr. Gray make clear to you that this action
was unacceptable.
Mr. Ejnley. Yes, sir : he did.
Senator Hart. On this memorandum from Mr. Jones to Mr. Bishop,
forwarding material from the field, paragraph 1— it is just a single
sentence — says that "The attached material be approved for trans-
mittal to the ^^^lite House through the Department."
Then there is a second recommendation, No. 2, that "After approval
that memorandum and attachments be returned to your office," that is
Bishop's office, "for transmittal to the office of Ralph Erickson, Deputy
Attorney General." Does that not indicate that even if Mr. Bishop
did not double check and get Mr. Felt's approval prior to sending out
the wire to the field that the project was approved by the acting
head, your Mr. Felt, before the material sent to headquarters was
turned over to Justice ?
]Mr. Kinley. I do not follow the question, Senator.
Senator Hart. Given these recommendations with the initials, and
assuming tliat Bishop did not double check and get Felt's approval
prior to sending out the wire to the field, does it not suggest that the
592
project was approved hy Felt before the material sent to headquarters
was turned over to Justice '^ Does not tliis at the bottom indicate that
by both Mr. Felt and Mr. Kinlej^ ?
Mr. Kjnlet. That is standard Bureau procedure.
Senator Hart. '\^niat is standard procedure if you disapprove ?
Mr. KiNLEY. Just indicate at the bottom.
Senator H^art. So this is approval ?
Mr. KiNLET. That is correct.
Senator Hruska. Approval of what?
Mr. KiNLEY. That the attached material be forwarded to the Office
of the Deputy Attorney General.
The attached material was a summary.
Senator Hart. AVho should Mr. Gray get mad at, Mr. Felt or Mr.
Bishop ?
Mr. KiNLEY. He got mad at both Mr. Felt and me.
Mr. Gray. You are asking me ? I got mad at my executive assistant
and Acting Associate Director, who are the two people whom I deal
with most directly. I did not discuss this with Mr. Bishop at all. I do
not do it that way. That is not the way I operate. Later on, of course,
when the inquiry came up, the inspectors met and we went into this
rather thoroughly, very thoroughly.
Senator Hart. The first time you talked to Mr. Bishop about this
was at or about the time the magazine Time was publishing a story
about it ? Is that correct ?
Mr. Gray. I am not even sure I talked with him then, Senator Hart.
My recollection of talking with Mr. Bishop about this matter is wheui
he came in regarding the preparation of the letter to Senator Ervin,
and I asked him questions about that, let him see that letter. Actually^,
I think I read it to him. I read the statement to him and asked him :
"Now is this a correct statement? I do not want to send this informa-
tion up if it is not." And I think, really, that is the first time I talked
with Mr. Bishop, because you could say that the fault was his, but I
did not view it that way. I viewed that the people I had to read off
were my executive assistant and my Acting Associate Director.
Senator Hart. Do you recall an occasion when you telephoned Mr.
Bishop at his home about this incident in October at or about the time-
the Time article appeared ?
Mr. Gray. I do not recall that, I really do not.
Senator Hart. Do you recall receiving a telephone call from Mr.
Ziegler at the Wiite House informing you about the publication of
this incident in Time magazine ?
Mr. Gray. I think Ziegler called. I am not sure of that at all. Senator,
but I think he called.
Senator Hart. Does that refresh your recollection as to whether or
not
Mr. Gray. If this were true I could very well have called Mr. Bishop
at his home and asked what this was all about or I could have called
Mr. Felt at that time, but I think this was — if you are referring to a
magazine article, I think that was much after the fact when I first
learned of this. I do not know which magazine article you are referring
to.
Senator Hart. You first learned of this, namely, the transmittal to
the Wliite House of information that had been obtained by Bureaa
593
field offices, tliat is the event, and following that immediately on your
return when you learned of that event you hit the ceiling ?
Mr. Gray. Y es, and I recall
Senator Hart. We have been discussing that. Now, some weeks later
1 understand you recall receiving a telephone call from Mr. Ziegler
informing you that Time was about to break the story ?
Mr. Gray. I think I did. I think I did. I am not sure whether it was
"from Mr. Ziegler, whether it was from somebody within his office,
whether it was from somebody within the Public Information Office of
the Department of Justice.
Senator Hart. And you say that that reminds you or suggests that
you may have called Mr. Bishop ?
Mr. Gray. Possibly.
■Senator Hart. At that time.
Mr. Gray. Senator Hart, I have to admit the possibility, but I do not
remember the call.
Senator Ha.rt. So you do not remember what you would have said
to Mr. Bishop ?
Mr. Gray. No, I do not, sir.
Senator Hart. Now, when the Time magazine article reached the
newsstand you had a "no comment" for the press. Why did you not say
ves, it was wrong, I made clear it was wrong and we will not let it
Kappen again ?
Mr. Gray. I have to think about why I did that. I do not remember
why I did that, Senator Hart.
Senator Hart. The press officer at the Department of Justice, John
Hushen, had confirmed the FBI had been engaged in this, Ehrlichman
at this time had said that such Bureau participation was a rnistake, was
wrong, and you, a few weeks before, had been extremely disturbed by
it. But you said "no comment" when asked about it.
Mr. Gray. I was disturbed enough by it to try to find out exactly
how this had occurred. That was the essence of it, but I do not see —
I cannot recall why I said "no comment." I say "no comment" to an
awful lot of things, Senator Hart.
Senator Hart. One last item on this topic. Would you provide us
with whatever written material the Bureau has that will identify the
date on which you asked your investigator general or whatever the in-
vestigative division is to investigate, to review, the event that we have
been talking about.
Mr. Gray. Senator, I am going to respectfully decline to provide
any materials from the files of the Federal Bureau of Investigation
with regard to inquiries or investigations. I have got some pretty clear
instructions on that. I made an exception in the case of the Watergate,
But the rules and regulations of the Department of Justice still apply
in other areas.
Senator Hart. Well, maybe I use the wrong label. Wliat about a
memorandum or letter that you wrote, if any, asking your deputy or
inspector to review the circumstances attendant on the clearance of
political material through the Bureau ?
Mr. Gray. No, I think probably my direction was, let us ascertain
what all the facts are in this case^ and it would probably have been a
purposeful order to the Assistant Director in charge of the Inspection
Division. I do not know that I actually wrote an order but this could
594
have been one -which I did even dictate and sign. But if so, that is a
part of the investigative file that was conducted by the Insipection
Division and I would respectfully decline, Senator Hart, to provide
that.
Senator Haet. I am not asking now for documentation that de-
veloped as a result of the investigation, but simply a memorandum, if
any, that jon wrote asking that such an investigation be undertaken.
That also, you believe, would not be permitted to be released to the
committee ?
jMr. Gray. Yes, indeed, Senator Hart.
Senator PLvrt. Well, would you at least on this one narrow request
inquire of the Attorney General whether you would be permitted, not-
withstanding your broad order, to release to us that one document?
yh\ Gray. Senator Hail, once again, there has to be a line of finality
drawn and I would respectfully decline, sir.
Senator Hart. I will be shot if I can figure out how that jeopardizes
FBI informative sources or degrades an individual or weakens a crimi-
nal case.
Mr. Gray. Senator, I think that every word that I am saying up here
in this distinguished forum is being listened to with great interest by
the representatives of eveiw intelligence service in the world who hap-
pen to be quartered in this Nation. And any activities of an organiza-
tion such as ours, techniques, tactics, and all the rest of it, are always
of interest to others. This is a real problem. It is of interest to us
with regard to their operation, and I have to keep this constantly in
mind. I just think that I have reached tlio point where I nin^t re-
spectfully decline. Senator Hart. I do not even know if I wrote a
memorandum, I may have dictated — I really do not know. I think
what probably happened is I turned around in my chair and pushed
the button on my console to the man in charge of my inspection
division and told him to get cracking. I may have dictated a memo-
randum, I do not know.
Senator Hart. Again, I will be hung if I can imagine how ]Vroscow
or Pekinsf. or whoever our enemies are now, are going to be helped by
your letting us see your memorandum asking for your investigation.
That is that.
Just a few loose ends regarding the speech at the City Club in
Cleveland.
Mr. Gray. Yes, sir.
Senator Hart. And any other speeches during that period.
You have corrected the record. As it now stands, the only invitation
you had when you accepted the Cleveland City Club's was the one that
was relayed through Patrick O'Donnell in the l^^iite House.
I do not think we asked you whether your arrangements for any of
the other speeches you made around the country last summer and fall
came as a result of invitations relayed through the '\^niite House. Did
any others?
Mr. Gray. To the best of my recollection, and belief, no.
Senator Hart. How about invitations relayed through the Com-
mittee to Ee-elect the President, or any other Republican campaign
committee ?
ISIr. Gray. No, sir. I received no invitations from the people at the
Committee to Re-elect the President.
595
Senator Hart. Now, wliat about those situations where you did re-
ceive these independent invitations, did you also receive some com-
munications, either written or oral, either to you or members of your
staff, if you know, commenting on the possibility of your accepting a
particular invitation? Do you know? The invitation specifically or
discussing the possible timing of such engagements?
Mr. Gray. I remember only one such instance that occurred later on
in September, I believe, or — I am testifying now from memory — but
I think it was a call to the Crime Eesearch Division. It may have been
a call to Mr. Bishop saying here is the theme that ]Mr. Gra}^ should
emphasize this week in his speeches, and that was very, very quickly
shot down. I recollect a memorandum on which I wrote, there on the
bottom, "Apparently Mr. O'Donnell is not aware of the President's
instructions to me" and my executive assistant wrote on that thing
before it even came to me "nuts." And we just did not do it. Somebody
is
Senator Hart. Now, could those memorandums be provided for the
committee ?
]Mr. Gray. Senator, I testified to you, I am under oath, I think I am
correct, and I would respectfully decline, because I am going to be
up here from now until about January providing memorandums.
There comes a point in time.
Senator Hart. If not many suggestions were made, it would hardly
take from now to January.
Mr. Gray. There were an awful lot of suggestions made and that is
my testim.ony and that is the one that I can recollect. I can say to you
that we just did not do it.
Senator Hart. Well, just as was true after your first appearance,
if on checking the files you find that there is any additional informa-
tion that would be responsive to those questions I hope you will answer.
]Mr. Gray. Out of a sense of honor and decency, but I do not want
to get this pattern going where I am submitting and submitting and
submitting. Senator Hart, I have to be honest with you. I think I can
sit here pretty long and chat quite a bit with you, but we do have to
reach a point of finality, do we not, where you have to vote up or down
on me ? I am entitled to some kind of a judgment.
Senator Hart. Nobody on this committee asked you to go to Cleve-
land.
Mr. Gray. I laiow that.
Senator Hart. Having gone there, we have to resolve some things
ourselves.
Mr. Gray. I know that. I realize that.
Senator Hart. So, if after you have checked the record, and this
has happened several times, in your earlier testimony, and could hap-
pen to anybody, you find that you can be more precise in this area,
or need to correct your testimony, please provide it. This is not to
extend the hearings to January. It is just to enable us all to understand
what influences were in operation, or were sought to be applied, on
these speeches.
Mr. Gray. You know, basically I would have no objection to doing
that, but I am trying to work on some kind of principle here with
regard to additional inserts in this record. Because it stands to reason
we can keep going for quite a long time and I think we ought to reach
a point of finality. I will make that check for you, Senator.
596
[Mr. Gray subsequently submitted the following document :]
Mr. Gray. I have checked our records and they reflect no other examples of the
White House making any suggestions to me or my associates that I utilize certain
ideas in my si^eeches.
Senator Hart. Do you think it is out of order for me to ask whether
you, or anyone in the Bureau who was working on your speeches,
received any speech material from the White House ?
Mr. Gray. No, I do not think it is out of order to answer that— to
ask that question, and I think probably if we checked that we may
have gotten all kinds of stuff that comes flying in, I do not know that
we did or did not, but we may have.
Senator Hart. Can you check the files and furnish us such materials,
if any, as did come in ?
Mr. Gray. I would, but I have a reluctance again, because I can dis-
tinctlv remember putting together some of those speeches myself. In
fact, on every one of those speeches I was the last and final arbiter of
what was said, since I had to give it. I can say to you without fear of
contradiction that I used no Wliite House material, Senator Hart.
[Mr. Gray subsequently submitted the following document :]
Mr. Gray. I have made inquiries concerning this matter of whether the White
House furnished any material to our speechwriters to be incorporated in my
speeches. No such material was furnished to us.
Senator Hart. Well, I do not write very good speeches for myself
and most speeches that I am anxious to have make sense begin with
somebody else. They wind up with my fiddling around with a pencil
but the chances are^ strong that what they began with is retained in
some fashion in my end product. That is what I am trying to find out.
One may believe that it is not retained but the chances are 50-50 at
least that it is.
Mr. Gray. This is true, but a lot of those speeches I wrote myself
from ground zero up on yellow tablet paper while riding around in
airplanes making visits to the field offices.
Senator Hart. In conclusion on the Cleveland political speech busi-
ness, Mr. Hoover was invited to speak before the Cleveland City Club
in the fall of 1968 ? I believe you told us that ?
Mr. Gray. I think that is my recollection. In any event, I have
furnished that documentation for the record and I will rely on the
documentation.
Senator Hart. The invitation and any internal memo or buck slip,
is that what we got back ?
Mr. Gray. You have received the documentation that we got from
the Cleveland City Club file.
Senator Hart. That is on your 1972 invitation.
I am talking now about what the files have on the invitation coming
in to Mr. Hoover and what memoranda, if any, are attached to that.
That would be the 1968 invitation.
Mr. Gray. David reminds me that you may be referring to an in-
ternal notation that is on the yellow or our file copy. I do not know
whether that is what you are referring to or not, but we did provide
a copy — I think what I am going to have to do is review what docu-
mentation we provided and go over it sheet by sheet and find out, to be
precise.
597
Senator Hart. It is my understanding that what we have been pro-
vided with, with respect to the Cleveland Club's invitation to you in
1972, is a memorandum summary.
Mr. Gray. You may be referring to the Jones-to-Bishop memoran-
dmn of June 16, 1972. Is that correct? Then, you may be referring to
the Bishop-to-Felt memorandum of June 27, 1972, Senator.
Senator Hart. Those have been provided the committee?
Mr. Gray. Yes, sir ; and those are the ones with my handwriting,
where I said "Conceptually let's try a speech responding factually to
criticisms of Princeton Conference without identifying. Let's be posi-
tive."
Senator Hart. All right. Wliat I am asking for is such material, if
any, that is in Bureau files involving the invitation in 1968, during
the political campaign of 1968, to Mr. Hoover.
Mr. Gray. No, I will respectfully decline because I fail to see the
relevance.
Senator Hart. I will tell you why it seems to me to be relevant. It
is possible there was a clear recognition on the part of Mr. Hoover
why it would be wrong for him to go in 1968.
Mr. Gray. It is also possible. Senator Hart, that Mr. Hoover did
not like to make speeches at his advanced age and did not go anywhere.
That is a possibility, too.
Senator Hart. All we are trying to do is to find out and that is why
I make the request.
Mr. Gray. I have denied under oath, time and time again, I did not
go out and make political speeches. It was not in my heart and not in
my mind. That is my testimony.
Senator Bayh. Would the Senator yield ?
Senator Hart. Yes.
Senator Bayh. I think that you also said if you had that to do over
again you probably would not make that speech.
Mr. Gray. One gets the feeling. Senator Bayh, being here with the
U.S. Senators, maybe the Acting Director should not make any
speeches. I think, really, the speeches have been misconstrued. I said
to you, I think your point is well taken, I have to look carefully at the
places where I made these speeches and at what time.
Senator Bayh. I do not want to interrupt fiirther, but I suggest that
we are not talking about the FBI Director not making any speeches.
We are talking about making speeches in the context of the McGovern-
Shriver appearance, and all the things you and I talked about, in the
heat of an election. This was not just any speech.
Mr. Gray. Let me just say. Senator Bayh, if I may, after thinking
the discussion through, I have resolved myself that sliould I ever be
confirmed for this position I am never going to make a speech of any
kind during a political campaign as it may be misconstrued. I have to
take that position.
Senator Hruska. Would the Senator yield ?
Senator Hart. Yes.
Senator Hruska. If you are not going to make speeches during a
campaign, Mr. Gray, in my judgment you are foreswearing the oppor-
tunity to make any speeches at all.
Mr. Gray. I was thinking of the campaign going through August,..
September, October, and until election day. And I would think prob-
598
ably not during August, September, October, and the first week of
November.
Senator Hrtjska. There are some who believe the campaign started
for some peofde on November 10, 1972.
Senator Bayii. Will the Senator yield ?
I think the opportunity for the Federal Bureau of Investigation to
be heard is important. I would not want my remarks to be interpreted
as even close to the interpretation which my good friend from
Nebraska has suggested. One guy may be running for the Presidency
as soon as the polls close, looking 4 years ahead. But that is not an
assessment for the Director of the Federal Bureau of Investigation to
make.
Senator Hart. You went to Cleveland and made that speech after
having received from the White House a memorandum that includes
this passage :
With Ohio being critically vital to our hopes in November we hope you will
assign this forum priority in planning your schedule.
You do not have to be a Ph. D. in political science to figure out there
is some politics in going to Cleveland.
Mr. Grat. Senator Hart, you are absolutely correct and I reached
the same conclusion when I read that request. I asked the Crime
Research Division to prepare that memorandum for me. I did not
willy nilly grab it and go off to Cleveland.
Senator Hart. But the memorandum told you the club is not a
political club. It does not mean a political speech will not be a political
speech.
Mr. Gray. That is my judgment as to the type of speech I wrote and
I submit to you, Senator Hart, that that was not a political speech.
Now, you and I certainly may differ and I will respect that difference.
It is an honorable difference and it is one made in good faith by both
parties. I did not do it that way, sir.
Senator Hart. I came into politics when you came into the Navy.
That may explain why that was not a political speech to you and why
it was a clearly political speech to me.
Mr. Gray. Senator Hart, to be a politician requires a great deal of
expertise and I do not know of any naval officers who have been very
good politicians.
Senator Mathias. Would the Senator yield to me on that ?
[Laughter.]
]Mr. Gray. I am talking about regular naval officers.
Senator Mathias. Well, I will not even accept that, Mr. Gray. I
have seen some pretty good politicking in the Navy.
Senator Hart. On the 28th of August agents of the Bureau inter-
viewed Mr. Chapin. As I get it, he was the appointments secretary
of the President and the fellow who came upon Mr. Segretti. Possibly
as a result of that interview you were requested by the U.S. attorney,
Mr. Silbert, to interview ]\Ir. Kalmbach. In your memorandum sum-
mary for the committee, you say Mr. Silbert wanted us to find from
]Mr. Kalmbach details concerning payments of money to Segretti, such
as how much was paid, where the moneys came from, and whether
reports were made by Segretti. This is not a matter of raw files.
This is a summary of what a responsible attorney, the President's
599
■personal attorney and finance official of liis campaign, was saying
about his own activities.
You have indicated that your legal counsel decided there was no
reason to investigate Mr. Segretti's activities. Was that opinion pro-
vided you by a written legal memorandum opinion or was it oral?
Mr. Gray. I think that opinion was a written opinion and as I
recollect the Department attorneys were also consulted.
Senator Hart. Have we been provided a copy of that legal opinion ?
Mr. Grat. No, sir ; you have not been provided that.
Senator Hart. Can we get it ?
Mr. Gray. No, sir. I must respectfully decline because that is a
part of the Watergate file.
Senator Hart. Eemember, that is just a legal opinion.
Mr. Gray. That is right, but it is a part of that file. Senator Hart.
It is in connection with that case.
Senator Hart. Well, at least on the 4th of September the TJ.S. at-
torney thought it important to find out the details concerning pay-
ments of money made to Segretti and what reports were made by
Segretti and where the money was coming from.
Your agents were told by Mr. Kalmbach that he paid out to Mr.
Segretti sizable sums in cash and he had no idea why this unusual
arrangement was used, no idea what services Segretti was perfomiing,
or to whom Segretti was reporting, or from whom he received in-
structions. No questions were asked.
Now, on the basis of what I suggest is a rather extraordinary inter-
view with a man of the stature and sophistication of ]Mr. Kalmbach,
what kind of full-court press did you use to find out for the U.S.
attorney what the heck was going on with all that money ? Did you go
back to Chapin and ask ?
Mr. Gray. I believe you may be reading from tliat insert I put in
the record. Is that the one you are referring to ?
Senator Hart. Referring to it. I was not reading from it.
Mr. Gray. That is the insert I put in ?
Senator Hart. Yes.
Mr. Gray. That is iiiformation that came from an FBI report of
interview, as I recall it, and that information was furnished to the
assistant U.S. attorney. We would take whatever other instructions
the U.S. attorney might have given to us.
But I submit once again, this is substance and I am not permitted
to discuss substance.
Senator Hart. Just procedurally then, if you had an investigation
underway that you think is a full-blown investigation, would you
not go back to Chapin and ask him ?
:Mr. Gray. No, I think quite to the contrary, that the full FD-302
revealed that quite a bit of information was obtained f roni Mr. Kalm-
bach. But I am not going to spread that kind of information again on
the record. I believe that I pro^dded an insert for the record on that.
Senator Hart. As I get it, the U.S. attorney wanted to know this
information about Mr. Segretti, and Mr. Kalmbach was not able to
answer. Now, would not an investigator then go to other sources to
seek the information and the answers ?
Mr. Gray. I think I can say to you that whatever the assistant U.S.
attorney would ask us to do m the way of gathering information, if
600
he specifically said go do this, we would do it. I think that must be
the obvious conclusion here, Senator Hart.
Senator Hart. Then that aspect of the full-court press was con-
trolled by the U.S. attorney, not by you ?
Mr. Gray. I was not operating that close to the leads that were being-
sent out at all on this. This is one of the points that I have tried to
make. From the position in which I sit, I do not write leads or develop
leads, but it is true that these do come to me in teletypes, maybe 2, 21/2,
or 3 days later, and I could block these. But I did not do that. Once
these leads are sent out and the FBI tactics are set in motion, those
leads are pursued.
Senator Hart. Did any of your agents seek to go back to Chapin
when they ran into "I do not know" with Kalmbach ?
Mr. Gray. No such request was made to me. But, you know, we
interviewed other people. It was not a case that we went to Mr. X
and Mr. Y and Mrs. Z and then stopped. We kept going all over the
place. These leads were going out to all the field divisions that were
involved in this, Senator Hart.
Senator Hart. Wliy would you and the Bureau not want to know
exactly what Mr. Silbert and the U.S. attorney wanted to know;
namely, where the money came from and where it was going?
Mr. Gray. I think we' have to conclude we gave Mr. Silbert the in-
formation he wanted to have, otherwise we would have come back
again.
Senator Hart. It is manifestly clear you were not able to give Mr.
Silbert the information he wanted because Mr. Kalmbach was not
Mr. Gray. We gave Mr. Silbert the information he asked for, and
when Mr. Kalmbach says I do not know, that is the answer we get.
We have to take that answer back to the U.S. attorney.
Senator Hart. Sure, but ha\dng gotten "I do not know" as your
answer, would not just a recently licensed private investigator say^
"Well, maybe Chapin can give me the answer" ?
Mr. Gray. If he were mvestigating political work of some kind,
perhaps, but we were investigating, Senator Hart — and I think you
have to keep that in mind— we were investigating an interception
of communications offense. There was enough interest on our part
(later on to ask, as more information came in, whether or not Segretti
has committed any offenses and should we investigate. We did that.
Senator Hart. Did you obtain the bank records or telephone records
of Mr. Kalmbach ?
Mr. Gray. That I do not know, whether we did or not.
Senator Hart. Would j-ou provide for the record, in that con-
nection-— ■ —
Mr. Gray. No, sir. I will have to respectfully decline to obtain that,
because if we obtained them it is included in the record and the
chairman and the ranking minority member and the chief counsel and
minority counsel have access to the record.
Senator Hart. I apologize to my colleagues. I know the lunch hour
is here. I have about 5 more minutes.
Now, Mr. Gray, your supplemental answers included lists of your
appointments with Mr. Ehrlichman in regard to the Watergate in-
vestigation. I notice you have several phone calls with Mr. Dean re-
garding security leaks of Bureau information but only one appoint-
601
ment with him on that subject. That appointment was 9 :30 in the
morning of October 18, last year, just 25 minutes after you had
talked to him on the phone about the news article based on Mr,
Young's affidavit that Segretti had been shown his FiBI interview
reports in order to prepare him for a grand jury ajipearance here in
the Watergate prosecution.
Now, when we were talking about this, the first day you were testi-
fying, you indicated to me that you simply called Mr. Dean and asked
him if lie had shown the reports to Mr. Segretti, and Mr. Dean said no,
he did not even have the reports with him in Miami. You said that
your tone was such that you thought it made clear to Mr. Dean that
he should tell you anything he knew about who might have shown
the reports to Mr. Segretti. You said that ended it.
Is it fair to infer that this subject also came up when you saw Mr.
Dean 25 minutes later at your office regarding leaks of information ?
Mr. Gray. Yes, sir. I think it is fair to infer that because when I
went back and checked the record I saw that this indeed had occurred.
I also checked with the field office, where I had been on that occasion,
to see if I had had any telephone calls there, and I find that I did have
phone calls with Mr. Felt, Mr. Petersen, and with my own office, as I
recollect it. I tried to ascertain whether or not on the 17th I had a
telephone call with Mr. Dean. I cannot determine if this is a fact,
whether I did or not. But I definitely called him on that morning
and I
Senator Hart. On the 18th?
Mr. Gray. Yes, sir; and when I went back and worked over my
calendars and saw my appointments, I think it is fair to infer, because
what he was discussing with me in that particular meeting was that
particular article.
Senator Hart. Well, what was the substance of your conversation
that morning when Mr. Dean came to your office ?
Mr. Gray. As I can best recall, it was a general discussion of the
leaks that had to come from within the Bureau, within the grand jury,
within the assistant U.S. attorney's offices. It was that t;7pe of a dis-
cussion. Although I cannot remember specifically discussing that one
particular allegation again with him, I remember the one with regard —
particularly with regard to the grand jury. Were we getting this grand
jury information, and was this in the FBI file.
Senator Hart. Was there any discussion about leaks from the White
House ?
Mr. Gray. Certainly, I would raise that. Senator Hart. I did every
time, but, as I testified earlier, I do not want to testify as to the tech-
niques and tactics that we use trying to uncover leaks. We do do that,
but we do not run every one of them down. I did not run every one
down that appeared in every newspaper article.
Senator Hart. I had the impression from your testimony the first
day that the only running down you did in this case was to phone
Dean and make clear, first, did he do it, and he said he did not, and by
your tone you made clear you thought it would have been wrong if
he had. But it went beyond that ?
Mr. Gray. I cannot remember that I specifically brought that up
with him again, when he was there discussing this particular article
and several others that were around during that period of time.
602
Senator Hart. Well, within 25 minutes of that phone call you told
us about, when you were here the first day, you had a meeting with
him. Your phone call was entirely and precisely on the story that
Segretti had been shown Bureau files. Then 25 minutes later you meet
him. Certainly, there must have been a very sharp discussion about it?
Mr. Gray. Certainly, there was a very sharj) discussion on the phone,
and I was able to recollect from the telephone conversations at the Salt
Lake City field office that this was one of the things that had been
reported to me, along with many other things reported to me.
Senator Hart. Well, according to, as reflected in, the record you fur-
nished the committee, you saw Mr. Ehrlichman the next day, the fol-
lowing day, that would be October 19, and from the records you fur-
nished us "you saw him about safeguarding investigative procedures
against leaks.
"Xow, did the newsstory about Mr. Yomig's affidavit, and his claim
that Segretti had been shown his interview report, come up for dis-
cussion when you saw Mr. Ehrlichman ?
Mr. Gray. No ; because Mr. Ehrlichman did not mention specifics but
he mentioned the general run of leaks of information that were appear-
ing in the newspaper.
Senator Hart. Well, did you mention it to Mr. Ehrlichman ?
Mr. Gray. Xo ; I did not discuss it with him.
Senator Hart. Maybe this is Monday morning quarterbacking, but
why did you not ?
Mr. Gray. I was over there, being called on the carpet for leaks of
information. That is the way I felt, at least, and was told to safeguard
and
Senator Hart. Wliat did you discuss with Ehrlichman that
morning ?
Mr. Gray. The general subject of leaks and those that were occur-
ring, j>ai"ticularly in that month of October, and those that had been
occurring all along. We discussed the charges that had been made in
the papers, the reference was to FBI sources, and they got pretty
strong m some of these articles attributing them right to FBI agents
who said that political sabotage was involved here. FBI agents just
were not saying that kind of thing.
Senator Hart. Well, I would assmne that the story about the
Segretti leak that appeared the morning before would have been
pretty hot stuff around the AYhite House and that it would have been
the subject of your conversation.
Mr. Gray. We did not discuss Segretti or anybody in particular.
We discussed the whole gamut of leaks. You know, it seemed to me
that we were constantly being called upon because of leaks within the
FBI and I resented it, because I do not think that there were leaks
within the FBI.
Senator Hart. Now, you indicated to the committee that subsequent
to the start of these hearings an agent or agents did interview Mr.
Chapin to determine whether he had shown any Bureau reports to
Mr. Segretti in jMiami ; is that correct ?
Mr. Gray. Yes, sir; that information is now in the public record,
but I would respectfully decline as I did this morning to testify more
with regard to that.
Senator Hart. I believe you did testify the check to Chapin was not ;
at your request ?
603
Mr. Gray. I believe I indicated that, and I have no recollection that
I did this. I think this came about as a request from the Department
of Justice to make the contact.
Senator Hart. Can you advise for the record, why that check was
made?
]Mr. Gray. No, sir; I respectfully decline, as I did with the other
members of the committee who asked this kind of substantive ques-
tions or to deal in these names.
Senator Hart. You cannot help us to understand why that sulise-
quent inquiry was limited just to Chapin and did not extend to Young
or Segretti or Dean ?
Mr. Gray. Xo, I cannot help you, Senator Hart.
Senator Hart. I think Senator Bayh asked on the subject of Dean's
presence during the interviews with White House personnel by Bureau
agents, was Dean the lawyer for the White House personnel or was
he the investigator for the President ?
Mr. Gray. I think I testified, Senator Hart, quite a few times that
my understanding of it was that he was there in his official capacity
as counsel for the President, conducting the inquiry that he had been
ordered to conduct by the President. I believe that is my testimonj'.
Senator Hart. Well, that w^as my understanding, and yet Mr. Ehr-
lichman says he asked Dean to be present when he was being inter-
viewed to serve as his lawyer. And if I read it right, Mr. Ziegler says
in every instance the Wliite House agent being interviewed asked that
Dean be present. And at his very last press conference President
Nixon said Dean had an attorney-client privilege, that we could not
get him up here because he had an attorney-client privilege that ran
to the "V^'liite House personnel that were interviewed by the Bureau.
Why do you have the impression that Dean was functioning for the
President when these other people say he was functioning as a lawyer
for the personnel ?
Mr. Gray. I cannot answer for that part of it. I can account for what
my understanding is because that was the understanding conveyed to
me initially. I think the attorney-client relationship is involved in this
whole matter of the separation of powers and the relationship of an
assistant to the President and the counsel to the President.
Senator Hart. Well, given the rather impressive array of people
who think that Dean was functioning as a lawyer for the people at the
"V^liite House being interviewed, would not that change your view as
to the propriety of giving Dean Bureau investigative reports ? Would
that not be a clear case ?
Mr. Gray. I would have to think that one through, because I feel
that when counsel to the President, acting in his official capacity, makes
a request to the Federal Bureau of Investigation, he is entitled to
have that request honored, particularly in a situation like this where
he is performing an investigation for the President of the United
States. I think any President of the United States would have insisted
upon it.
Senator Hart. Well, in your mind, he had one hat on, and in the
mind of Ehrlichman and some others, he had another hat on, and I
guess we can say he was wearing at least two hats.
I wind up by asking your reaction to this. In the litigation brought
by the Democratic national chairman involving Watergate, the judge
in that case, Judge Richey, barred a Civil Division Justice Depart-
604
ment lawyer from representing Mr. Colson in that civil suit over
Watergate because others in the Justice Department were involved
in the prosecution and would have access to investigative files. Does it
not seem a far more serious problem of conflict if the person serving
as legal adviser to the Wliite House staffers and the person having
access to FBI investigative material because he was conducting in in-
quiry for the President were one and the same person, Mr. Dean ?
Mr. Gray. This happens quite a few times in the Department of
Justice, where between the various divisions we find ourselves in this
particular position. However, it is not to me anywhere near the same
situation where the counsel to the President is charged with the respon-
sibility to conduct an inquiry for the President and report to the
President. I think that it is proper to make that information available
and I think that any President would require it.
Senator Hart. And he was also the person sitting there as lawyer
for the subjects being interviewed. It seems to me a clear conflict.
Mr. Gray. Senator Hart, I testified many times on this record as to
what my understanding is, and that has got to be my testimony of
record, because it just is.
Senator Hart. I would ask that the order which I read, issued by
U.S. District Judge Charles Richey, and related news stories, be made
a ]3art of the record.
The Chairman. So ordered.
[The documents referred to follows :]
United States District Court foe the District of Columbia
Civil Action No. 1233-72
The Democratic National Committee, et al., plaintiffs
V.
James W. McCoed, et al., defendants
ORDER
Upon consideration of plaintiffs' Motion to Disqualify the Department of
Justice from Acting as Counsel for the Witness Charles W. Colson and the
Opposition to said Motion filed by Irwin Goldbloom, Special Litigation Counsel,
Civil Division, United States Department of Justice, attorney for Charles W.
Colson, the Court finds :
1. That the plaintiffs have sought to take the oral deposition of Charles W.
Colson, a possible vpitness in this action ;
2. That the Department of Justice is supervising an investigation into alleged
criminal conduct of the named defendants herein and possibly others unknown
to this Court. Moreover, the subject matter of such criminal investigation is
related to the subject matter of this action ;
3. While there is some authority for the Department of Justice to furnish
Mr. Colson or other government officials with one of its attorneys to act as his
or their private counsel in this matter, such special representation will not be
condoned by this Court because the Justice Department is otherwise engaged,
through other employees, in a criminal investigation of the subject matter
which is akin to the gravamen of this civil action.
Wherefore, by virtue of the foregoing, it is this 4th day of August, 1972.
Ordered, that the motion to strike and disqualify Irwin Goldbloom as attorney
for Charles W. Colson be and hereby is granted : and it is
Further ordered, that any noticed depositions of Mr. Colson be and are hereby
postponed until such time as Mr. Colson has obtained the representation of
other counsel, and until sucti time as such new counsel has had an opportunity
to acquaint himself with this action ; and it is
Further ordered, that Mr. Colson shall obtain counsel to represent him within
10 days of service of this order upon him ; and it is
GOo
Further ordered, that the United States Marshal, or his designated deputy,
shall serve this order upon Charles W. Colson forthwith.
Chakles R. Riohet,
U.S. District Judge.
[From the Washington Post, Aug. 15, 1972]
Appeal Is Set in Watergate Case Decision
(By Carl Bernstein and Bob Woodward )
The Justice Department announced yesterday that it intends to appeal a
federal judge's ruling that it cannot represent White House aide Charles W.
Golson in the Democrats' $1 -million civil suit in the Watergate break-in.
U.S. District Court Judge Charles R. Richey had disqualified a Justice attorney
from representing Colson on grounds that the department is handling the sepa-
rate criminal investigation of the Watergate incident.
In a court motion filed yesterday, the Justice Department contended that the
disqualification of its attorney could prevent it from protecting the functioning
of the President's staff.
"Mr. Colson, as special counsel to the President is, of course, involved in many
important and sensitive executive functions," the motion said. "As such, any
wide-ranging inquiry on a deposition cotild well intrude into matters relating to
his official duties."
The Democrats have subpoenaed Colson to take a formal statement from him.
They have done this on the grounds that he may have knowledge of the case.
At the same time, Justice also yesterday filed notice that it will appeal Judge
Ridley's similar ruling that Alfred Wong, the chief of Secret Service technical
security at the White House, cannot be represented by the department in the
ca se.
Five men were arrested inside the Democratic national headquarters at the
Watergate here on June 17. They were carrying electronic eavesdropping and
photogra phic equipment.
The Democrats filed the $l-million civil suit against the five susi>ects. one of
whom is the former security chief of President Nixon's campaign committee, on
the grounds that the incident was a potential infringement of the constitutional
rights of all Democrats.
In yesterday's court motion, the Justice Department asked that Judge Richey
delay his disqualification orders pending formal appeal.
Meanwhile, a White House spokesman said yesterday that President Nixon
will not appoint a two-member, bipartisan commission to investigate the Water-
gate incident, as requested Friday by Sen. William Proxmire (D-Wis.).
In addition to asking the President to name an investigating commission.
Proxmire introduced a Senate resolution Friday tiiat would establish such a
commission if Mr. Nixon failed to do so.
iSince the disclosure that a ?25.000 campaign check passed through the Com-
mittee to Reelect the President to the bank account of one of the suspects, the
incident has been growing as a political issue in the campaign.
On Sunday, Democratic presidential nominee George McGovern told a tele-
vision panel' that, "I am going to talk aibout it on every stage and to every
audience I reach across this counti-y, until we hring this matter out into the
open."
[From the Los Angeles Times, Aug. 31, 1972]
No Legal Help for Nixon Aide
Washington. — The Justice Department gave up its efforts Wednesday to
represent a top White House aide in a $1 million civil suit filed against five
men accused of bugging Democratic National Committee headquarters.
Reversing an earlier decision, the department decided, in effect, that White
House counsel Charles W. Colson must obtain his own lawyer.
A Justice Department spokesman refused comment on why appeal was dropped
to a federal judge's ruling that the department may not assign a lawyer for
Colson.
U.S. Dist. Judge Charles Richey had ruled that a parallel crimiuHl investi-
gation conducted by the Justice Department would create a conflict of interest
if a government lawyer were to defend Colson when he delivers a deposition to
attorneys for the Democrats.
91-331—73' 39
606
It was Colson wlio hired former CIA agent E. Howard Hunt, who has been
connected with the five men arrested in the case, including James W. McCord,
who until recently was security chief for the Committee To Reelect President
Nixon.
Senator Hart. Thank you.
The Chairman. We will recess now until 10 :30 tomorrow morning.
[Whereupon, at 12 :50 p.m., the hearing was recessed, to reconvene
at 10 :30 a.m., Wednesday, March 21, 1973.]
NOMINATION OF LOUIS PATRICK GRAY III
WEDNESDAY, MARCH 21, 1973
U.S. Senate,
Committee on the Judiciary,
W ashing ton^ D.C.
The committee met, pursuant to recess, at 10 :43 a.m., in room 2228,
Dirksen Senate Office Building, Senator James O. Eastland, chairman,
presiding.
Present : Senators Eastland, Ervin, Hart, Kennedy, Bayh, Burdick,
Byrd of West Virginia, Tunney, Hruska, Mathias, and Gurney.
Also present: John H. Holloman, chief counsel, and Francis C.
Eosenberger, Thomas D. Hart, and Hite McLean, professional staff
members.
Senator Eastland. The committee will come to order.
Senator Kennedy.
Senator Ivennedt. Thank you.
Good morning, Mr. Gray.
TESTIMONY OF LOUIS PATRICK GRAY III— Resumed
Mr. Gray. Good morning. Senator Kennedy.
Senator Kennedy. If I could, I would like to ask you what informa-
tion you could give us about the progress that has taken place in the
ITT investigation. I think some time ago I asked you about that in-
vestigation, which started in December of last year, and I am just
wondering now if you are able to give us any information as to its
progress ?
Mr. Gray. Well, Senator, I would like to be able to give you some
information on that and comment on it. It is an ongoing investigation.
My latest information is that it is almost complete and I do not know
this morning whether or not the four interviews that we had to do have
been completed.
Senator Kennedy. The four interviews ?
Mr. Gray. Yes, sir; I believe that the last time you and I discussed
it, I stated that I had learned, coming up in the automobile, that we
had four more interviews to do.
Senator Kennedy. Did you at any time consider disqualifying your-
self from the ITT investigation ?
Mr. Gray. No, Senator Kennedy, I would not. I thought about that.
I thought about it just — I think it was last week in connection with
another case that came up, and I think
Senator Kennedy. What case was that?
Mr. Gray. Well, it is a completely different one, totally unrelated
and doesn't involve anything that we have been discussing here,
(607)
608
Senator. But I tliouo;]it about it in connection with that case, too, and
I feel that I have got to stay in these cases as the Acting Director of
tlie FBI. I feel that I must try to do what is expected of me in that
j)osition. I didn't disqualify myself.
Senator Kennedy. Could you review with us what your role was
at the time this committee was considering the ITT case, your counsel-
ing and advising of Mr. Kleindienst?
JNIr. Gray. Yes, sir.
Senator Kennedy. Were you in touch with the people from ITT
during that period of time ? Did you have communications with some
of those that were being referred to in the course of the investigation ?
Mr. Gray. Senator, I believe not. I believe the only time I saw
those people was up here. I am testifying now from memory because
I haven't gone back and studied the ITT case. But I believe that my
only contact with those people would have been up here. As you
know. I was the Deputy Attorney General designate at that time. I
had been nominated for that position, and as I testified earlier, there
did come a time during the ITT hearing when I remember a colloquy
here betnveen a Senator and the then Acting Attorney General regard-
ing his continuing to act on requests for material from the Depart-
ment. I don't know that we can find that in the record, yet I seem to
remember it.
Senator Kennedy. One was the request we made for the file that
had been turned over to the SEC, which had a great deal of infor-
matio]! relating to ITT, as we have seen in the last few days. That
was one of the requests that were made ?
ISIr. Gray. Yes, sir, and I can state under oath here that I had no
connection with that SEC file at all. I didn't even see it.
Senator Kennedy. How would you describe your function up here ?
You said you were up here during that period ?
Mr. Gray. I was the Deputy Attorney General designate then
: serving as the Attorney General in charge of the Civil Division, and
I was in charge of the attorneys in the Department who were doing
a review. What we were trying to do was put together issues-and-
answers papers, and also there came that time during the hearing
where I began to actually act on the document requests. Mj recollec-
tion is that the first letter that I signed up here — I know I had some
convereations with Mr. Comegys and I know he and I had an exchange.
I think I am correct in saying the first letter I signed up here was on
or about March 17 of that year.
Senator Kennedy. You were very much involved in that, were you
not, in counseling or guiding and working closely with ]\Ir. Klein-
dienst during the period in which he was up here being considered
for the nomination?
Mr. Gray. Senator, I think it would be quite accurate to say I was
supporting him because indeed I was, but I was not in the position
of counseling or guiding him because what I was learning about ITT
I was finding out on an almost daily stud}' basis. Therefore, I was
not in a position where I occupied, where I could give him any counsel
or guidance
Senator Kennedy. How else would you describe that relationship,
other than being a counselor, if you were supporting him, working
with him, trying to help him respond to committee requests ?
f 609
Mr. Gray. I was digging up answers and working with the attorneys
in the Department and preparing issnes-and-answers papers for utili-
zation in tr3'ing to prepare the Senators on tlie floor.
Senator Kexnedy. Those were answers to questions which were being
asked by Senatoi-s, were they not ?
jMr. Gray. I don't know — well, first there w^ere questions that were
being asked where we were being required to put the material in the
record, that is correct. Then there was another phase where we were
doing issues-and-answers papers.
Senator Kennedy. But you were preparing answers to questions that
might be asked by Senators in the course of tlie investigation. How
much further could you be involved in the course of v/orking with
him ?
Mr. Gray. I would say I was pretty much involved with workin^g
with the attorneys. I wasn't actually doing it myself. I was the leader,
the coordinator, that sort of thing.
Senator Kennedy. You were the leader and coordinator for the
Klei:idienst forces in maintaining, I imagine, the Attorney General's
position that had been laid out here before the committee and which
was being tested in various questions by members of the committee;
Avere you not ?
Mr. Gray. I would say that is a fair statement, doing the same thing
we are now — when a Senator asks for an insert, to get that material
and put it together.
Senator Kennedy. During the course of the time that you were pre-
parinof these responses to questions did vou have occasion to talk with
Mr. Mitchell?
Mr. Gray. I don't recall that I did. I have really to seai'ch back to
that, Senator, and try to think ail that through, and I just don't think
that I can answer that question. I am trying to think whether I would
have had any reason to talk with him, whether there would have been
anything for me to say to him or to receive from him. It really wasn't
thfit typ^ of thing I was doing. My recollection is no, but
Senator Kennedy. Do you Imow a Mr. Flanagan whose name was
prominently associated?
Mr. Gray. That is right, I remember that.
Senator Kennedy. Did you have occasion to talk wath him?
Mr. Gray. Xo, I was not in that kind of circuitry in that operation.
This is my best recollection.
Senator Kennedy. How about Mr. Dean ?
Mr. Gray. I don't know that he was even involved in that at the time.
He may very well have been. The only time that I came in contact with
him, of course, was with the matter of tliat memorandum and not in
connection with the development of inserts for the record or issues-
and-answers.
Senator Kennedy. Was that the only conversation that you had
with him?
:Mr. Gray. I believe that it is. It is foggy and I have tried with the
assistance of others to recollect and try to piece that together. But
it is my best recollection that that is the only conversation that I had
with him in connection with the ITT.
Senator Kennedy. Certainly this was a case which was enormously
sensitive to the Justice Department. As a matter of fact, ISIr. Klein-
dienst himself allegedly sent a note disqualifying himself from re-
610
sponsibility and indicating McLaren had responsibility for it. Why
couldn't von do the same thing with regard to the ITT investigation
in the FBI?
]Mr. GrxVy. You mean write off responsibility?
Senator Ivennedt. Well just indicate that anything that comes in
goes to my Deputy Director in this case?
Mr. Gray. I don't like that idea, Senator.
Senator Kennedy. "Wlien would you do that? Do you see any cir-
cumstances in which you might?
^Ir. Gray. I think there are.
Senator Kennedy. Can you describe what they are?
JNIr. Gray. I have to look at it case by case.
Senator Kennedy. I have given you an ITT case.
Mr. Gray. No, I don't, because I am not going to tell the men and
women of the Federal Bureau of Investigation to do anything in
that ITT case that wouldn't be in accordance with the standard FBI
operating procedures. I am going to tell them as they work with the
Assistant U.S. Attorneys to carry out their instructions.
Senator Kennedy. Excuse me. It was Mr. Mitchell who disqualified
himself and let Mr. Kleindienst do the ITT case, even though INIr.
jSIitcliell had the general responsibility for the Department. He placed
himself out of any kind of potential appearance of conflict did he not?
Mr, Gray. But he has the ultimate decision to make.
'Senator Kennedy. Who has it in the FBI with regard to this in-
vestigation? Don't you have it?
INIr. Gray. We don't decide things like that in the FBI. We push
a button and start to investigate and go. It isn't a situation where
they come up to me and ask me at each step of the way for guidance
in this. It isn't that type of thing where you have to make the final
decision to prosecute or not prosecute. We develop the investigation
and deliver that investigation to the Assistant United States Attor-
neys and work with them on it. But it isn't a thing where the Acting
Director of the Federal Bureau of Investigation is injecting himself,
you know, on a daily basis or an hourly basis.
Senator Kennedy. But vou decide whether they investigate IMartha
:Mitchell or Mr. ^litchell?
Mr. Gray. No, not really.
Senator Kennedy. No, not really?
Mr. Gray. Not really. Senator Kennedy. I don't decide that. Eecom-
mendations are made and come up to me, and in these particular cases
you are referring to now. Martha ISIitchell, for example. I approved
that recommendation that she be interviewed and I think the testi-
mony of record shows that.
Senator Kennedy. Well, with John Mitchell's approval ?
Mr. Gr.\y. Sir?
Senator Kennedy. With or without Mr. Mitchell's approval ?
INIr. Gray. With the recommendation, as I recall reading it into the
record right off the memorandum, that we consult with the Depart-
ment.
Senator Kennedy. Are any of the progress reports on the ITT affair
goifig to the '\"\niite House ?
Mr. Gray. I believe not, sir.
611
Senator Kennedy. Do you know that they are not ?
_ Mr. Gray. I will have to check, sir. That is an ongoing investiga-
tion and I will check, sir.
Senator Kennedy. So is the Watergate.
Mr. Gray. I know. I will check to satisfy myself, but this is an on-
going iuA^estigation and it is an invesigative file, Senator, and I have
to respectively decline to answer some of the substantive questions
here.
Senator Kennedy. Not substantive. I am not asking what is in the
rnaterial but whether the material is being made available ; or did you
give an order that none of those materials were to be turned over to
the White House without your approval ?
Mr. Gray. No, I gave no such order.
Senator Kennedy. How about the Justice Department? Do you
know whether, as a matter of course, some of the results of the investi-
gation might be turned over to the Attorney General?
]\Ir. Gray. I am sure that the assistant U.S. attorney level, and I
would say that the Assistant Attorney General level in the Criminal
Division, would certainly be receiving these reports, but I don't know
of any other transmission.
Senator Kennedy. Wouldn't you want to know whether this, or any
other matter as sensitive as this, is being turned over to the Attorney
General or to the White House ?
]Mr. Gray. I think I probably would, arid I woxdd Kave no reason!
to believe that it is.
Senator Kennedy. Would you feel that they should be issued or not,
given what you know about the Watergate affair, and about the leak
of the Beard memorandum? A^Tiat would be your judgment if you
had a choice?
Mr. Gray. I think that would be a fairly tough choice.
Senator Kennedy. It might easily be a choice — we are interested in
seeing how you would decide.
Mr. Gray. I think probably this would be in the Attorney General's
realm, that after the discussions that we have had concerning this
matter, I think that probably I would do this. But I would have to
meet it head on if a request was made by the Wliite House to provide
that.
Senator Kennedy. But, Mr. Gray, he has been one of the witnesses
in the investigation, and you still think that you could turn that mate-
rial over to the Attorney General ? He is one of the principal figures.
Mr. Gray. I was testifying here on these confirmation hearings, that
is correct.
Senator Kennedy. And doesn't that disqualify him ?
Mr. Gr.\y. Disqualify me ?
Senator Kennedy. No, if he was one of the figures who has been
involved in the whole consideration of the investigation, wouldn't
that cause you at least some concern about turning that material over
to his office? He has an interest, does he not, in what the results are?
Mr. Gray. I think he does. I would say that this is probably a deci-
sion that he has got to make himself as to whether or not — —
Senator Kennedy. Wliat decision are you going to make ?
Mr. Gray. I am giving the material certainly to the assistant U.S.
attorneys with whom we have to work and to the Criminal Division of
the Department of Justice.
612
Senator Kexnedy. Are there U.S. attorneys involved in this case ?
Mr. Gray. I am not certain ^Yhether they are at this time or not.
They are probably not at this time. We are probably taking direction
and guidance from the Criminal Division of the Department witli
regard to the conduct of the investigation.
Senator Kennedy. So you wouldn't have to turn any materials over
to tliem at this time, would you ?
Mr. Gray. Probably not, Senator. But there will come a time wlien
we will be working with them, and I was talking in terms of our nor-
mal process.
Senator Kennedy. But do I undei'stand that in the meantime you
would still be willing to turn that material over, even material in which
the Attorney General would have a personal interest ?
Mr. Gray. I am turning it over certainly to the Criminal Division,
and I think this is a decision that has to be made at the Attorney Gen-
eral level whether or not he feels himself disqualified in this case.
Senator Kennedy. What about the "\Aliite House? Your response is
you are not at this point prepared to indicate whether files regarding
the investigation of the ITT have actuallv been made available to the
White House ?
Mr. Gray. Well, the "\^niite House hasn't initiated a request for them
yet. I don't know that they will initiate a request, and I will have to
meet that head on when it comes to me. Senator.
Senator Kennedy. You couldn't tell us now ?
Mr. Gray. I don't know. It is a tough question. It is one that may
very well go
Senator Kennedy, Well, say Mr. Dean calls you up and says the
President wants to see those files. Given the track record of these last
few weeks, what would you give him ?
Mr, Gray. I think I would have to give it some very serious consid-
eration. Senator Kennedy.
Senator Kennedy. What more would 3'ou have to consider? ]Mr.
Dean's point of view ?
yiv. Gray. Well, you have the fact that I am sitting here as a Bu-
reau Chief, heading up a Bureau in an executive department, the
Dej^artment of Justice. You have a man who is counsel to the President
of the United States. That man calls you in his official capacity and
says he has been directed to conduct an inquiry into this matter by
the President of the United States, I think that is the way it could
come. That is the only way I know it could come, I will have to make
that decision again.
Senator Kennedy. This investigation was really the result of the
request by the Judiciary Committee. Could you tell us, is this a full
field investigation, or is it a particular interview investigation?
Mr. Gray. We are conducting it in accordance with the terms set
forth to us by the Department of Justice.
Senator Kennedy. Is that full field or a particular investigation ?
Mr. Gray. I don't know what you mean by "full field." If you
mean
Senator Kennedy. I guess the words are "full court press."
Mr. Gray. Yes, that is the phrase that I used and the phrase that is
used in the Federal Bureau of Investigation.
Senator Kennedy. Is it that kind of
613
]\Ir. Gray. It arises from handball games or basketball games.
Xo, I would say in this investigation that we are being directed by
mcmorandimis from the Criminal Division.
Senator Kexxedy. From the Justice Department ?
Mr. Gray. From the Justice Department. But they have requested
it, though, from the Judiciary Committee.
Senator Kennedy. That is what I am trying to find out, so we can
liave some idea of what we are going to receive, wliether this is just
casual interviews Avith particuhir jDeople that haA^e been interviewed or
wliether we are going to receive the kind of full court press investi-
gation which I think the Judiciary Committee felt was necessary?
Mr. Gray. Certainly I can say that within the scope of the investi-
gation, within the dictates of the memorandums and the instructions
from the Department of Justice, you are going to get the full court
press treatment, Senator Kennedy.
Senator Kennedy. Would the materials resulting from that investi-
gation be available to the Judiciary Committee ?
]Mr. Gray. That is an investigation, Senator Kennedy, conducted by
the Federal Bureau of Investigation, and traditionally those have not
been made available and they are not available now.
Senator Kennedy. Even when it is conducted at the request of the
Judiciary Committee and not initiated either by the executive itself
or the FBI, but by the Judiciary Committee?
!Mr. Gray. Still an investigation conducted by the Federal Bureau
of Im*estigaiion, and the traditional policies with regard to its in-
vestigative files would apply.
Senator Kennedy. From what I gather from your response, we
would not be able to receive the material, but the Attorney General
would be?
'Sir. Gray. I don't know what the final decision will be in that
matter. Senator Kennedy. I don't predict it.
Senator Kennedy. I would like to go into an area which has been
touched on briefly during the course of these hearings, but I would
like, if I could, to review this material with you again. This is to
better understand the order and the thinking in your own mind about
the considerations which went into your decision in responding to
different requests. I am speaking now about the July 17 request by
John Dean, asking you for a memorandum on the political espionage
and sabotage, as a result of which, on July 21, you sent such a memo-
randum to the Attorney General assuming that it would go to Dean.
We have been over that particular subject.
Now, I would like, if I could, to really get straight what happened.
In relationship to the request from Mr. Dean, do you remember
whether you said "Yes" or whether you said "No." whether you said
"iMavbe," or what exactlv vour answer was? Do vou remember at this
time?
jNIr. Gray. No. I don't remember whether I said "Yes" or vfhether I
said "No." I said this is one I want to think about, and I can remember
discussing it within my own office. I think that I resolved personally
that I was going to ask for an opinion from our own Office of Legal
Counsel with regard to this, because
Senator Kennepy. With regard to what?
^Ir. Gray. With regard to providing a letterhead memorandum
summarizing the status of the investigation.
614
Senator Kennedy. Let me see if I understand this. You were going
to ask your counsel about your legal responsibility, as to whether you
ought to res]oond to a direct request, or what, from
^Ir. Gray. No, in a criminal case whether we are under a duty to
provide this.
Senator Kennedy. Provide
]Mr. Gray. Pro\dde a letterhead memorandum. In other words,
should we initiate it? I had tliis same problem on June 19 when I
stopped it, when we were holding things very closely.
Senator Kennedy. Well, as I understand, it is not a question of
whether you initiate it but whether you are responding to a request.
Mr. Gray. This was a request; that is correct.
Senator Kennedy. So it is not a question of your initiation. He
had requested you to
]Mr. Gray. That is correct.
Senator Kennedy. And at anv time during vour conversations did
you indicate to him that the Attorney General ouglit to decide ^
Mr. Gray. I don't think I said it that way. I said — trying really to
remember — and it was, I think, the second tekphone call when I told
him — yes, it was the second call — that I was in the process of obtaining
a legal opinion in this matter.
Senator Kennedy. Do you remember whether you told the members
of your immediate staff about this request ?
Mr. Gray. They must have known about it, because I asked for that
legal opinion, but I can't recall.
Senator Kennedy. Do you remember what you asked of your Office
of Legal Counsel ?
Mr. Gray. I would have to refer to the opinion.
Senator Kennedy. Well, we have the opinion, and it is included ; but
do you remember if you asked them whether it was appropriate for the
FBI Director to make this material available or to respond to such a
request, or what you really asked him ? Here you had a request, as I
understand it, from JSIr. Dean, and I am just interested in what you
actually requested from the Legal Counsel ?
Mr. Gray. I am pretty sure my recollection, without having that in
front of me, was that I asked did we have an obligation under our
rules and regulations and our procedures to provide such a memoran-
dum to the Counsel to the President. I would have to look at that
memorandum to be sure.
Senator Kennedy. On your own initiative or on request ?
Mr. Gray. Well, both were covered in that memorandum.
Senator Kennedy. Because the memorandum provides — do you have
a copy in front of you, Mr. Gray ?
Mr. Gray. I know we submitted it for the record.
Senator Kennedy. In paragraph -2 of the memorandum, it says — •
this is now from your counsel to Mr. Felt —
We did not consider the matter of disseminating sueli information to the White
House on specific Wliite House request. In this latter situation, we assumed the
President is tlie top
Mr. Gray. That is right.
Senator Kennedy. Really, wasn't that the
Mr. Gray. Well, it must have been, but my recollection was to the
contrary, because I can recall discussing this with Mr. Felt and
615
Senator Kennedy. Did you tell counsel that this was as a result of
Mr. Dean's request, that you wanted
Mr. Geay. No, I did not.
Senator Kennedy. Any reason why not ?
Mr. Gray. I can tliink of no reason at the present time other than
perhaps it may have produced a different type of opinion if he had
known it was coming in that m.anner.
Senator Kennedy. Isn't that what you were trying to find out?
Mr. Gray. I wanted to find out the real opinion because of the efforts
I had been making to try to set a standard policy within the FBI.
I have been trying to do that.
Senator Kennedy. Wouldn't you want your own counsel to know
what these requests were ?
Mr. Gray. Yes, I probably would. I can't remember whether I said
this or not and apparently t did not say it. I just can't recall.
Senator Kennedy. And you don't know whether INIr. Felt knew
about the direct request?
Mr. Gray. I can't recall. I think ves, he did. He and I discussed it
and I said regardless — I can remember talking with him — regardless
of who is President, I think they would be entitled to it, but I want
to check it.
Senator Kennedy. That really isn't what the legal memorandum
says. It says, "AVe do not consider the matter of disseminating such
information to the A^^iite House on specific White House request."
Mr. Gray. The only reason I can account for this is that I might
want him to look at this cold and cover the procedure.
Senator Kennedy. Look at which question ?
Mr. Gray. The question of dissemination.
Senator Kennedy. But as I understand it, the question was whether
you had the responsibility of supplying it at the request of ]Mr. Dean.
That was the question that you were looking at cold, was it not?
Mr. Gray. It was a question of supplying it to the '\^'liite House.
Senator Kennedy. After a request ?
Mr. Gray. That is right, sir.
Senator Kennedy. You do not have any memory whether you told
]Mr. Felt either to tell your counsel or not to tell your counsel whether
that was a
Mr. Gray. I do not, sir.
Senator Kennedy. Could you have told Mr. Felt not to tell
]Mr. Gray. It is possible, because I vaguely remember saying to him
in discussing it with him with regard to prior FBI procedure, that
regardless of who is President I would feel that the President would
be entitled to this. But I can't recall specifically. This isn't one on
which we apparently made any kind of a written notation or note.
Senator Kennedy. So you had made up your own mind that you
had a responsibility of making that infomiation available to the White
House ?
Mr. Gray. No, I had not, Senator Kennedy. I had not.
Senator Kennedy. Well, you didn't indicate that you wanted any
legal guidance on that particular issue, did you ?
Mr. Gray. Yes, I did, I said I wanted to take a very, very careful
look at it. I discussed it with Mark Felt.
Senator Kennedy. You could not read this memorandums and think
that this was the subject matter. I think you stated directly it was a
616
feiioral kind of legal memorandum about the dissemination of material
y the FBI on their own initiative ; and it says quite explicitly "'we did
not consider the matter of disseminating such information to the
White House on specific "White House request." That is why it is diffi-
cult for me to understand, if this request was made of you and if you
indicated you wanted an opinion on it, why that is not clear in the
Mr. Gray. I can't explain that either, except I can recall discussing
this with ^Ir. Felt on the phone. I think it was from Salt Lake
City. I know that we discussed the President's — and I was rationaliz-
ing to myself, would I do this I'cgardless of who was elected President
and I came down on the side of "yes." but I wanted to check it.
Senator Ivexxedt. Now, in the latter part of that, the last linos say :
"The authority and obligation of the FBI are to keep the Attorney
General fully informed and leave the rest to him." Those lines are
underlined. Then your statement : "Do so in this particular case and
all future cases." Is that correct?
Mr. Grat. That is a correct statement and that is my red underlining
on the original.
Senator Kenxedy. And so you sent the information ovei- to the
Attorney General ?
;Mr. Gkay. That is correct, sir.
Senator Kexxedy. And why did you send it over to the Attorney
General ?
]Mr. Gray. Because of the policy and the practice and the pi'occdure
within the Department, and because I was trying, once again, to get
these channelized and to try to get this kind of material — when we
are preparing a written response to a request — to come through the
Cabinet officer and go through the Cabinet officer.
Senator Kexxedy. I think we have been over that. Even though the
request went, it didn't have any charge, remark, oi' note, e\ en to Mr.
Dean. We have been over that.
3ilr. Gray. Yes, sir, and I think I testified that I either called the
Attorney General or — I just can't be positi\e which, I think it was tlie
Deputy Attorney General — and told him that I had this discussion
with ]\Ir. Dean and that this letterhead memorandum would be com-
ing up.
Senator Kexxedy. Xow, yesterday you said that on .Tuiy 20, ]Ma-
gnuler told your agents about Dean's relationship with Liddy : is that
correct ?
Mr. Gray. Are j'ou referring. Senator — the report of interview of
Mr. Magruder?
Senator Kexxedy. That is right. On July 21, you sent the memo
over to the Attorney General, assuming it would go to Dean, based
upon wliat we have just reviewed. Now, on July 20. your agents, as I
understand, learned of Dean's relationship with Liddy; is that cor-
rect ? I think that is what you testified yesterday.
Mr. Gray. Yes, as I recollect that 802 — once again I am testifying in
substance, but I said it yesterday and I want to try respectfully to stay
away from this kind of material, because of my instructions — that a
recommendation had been made by Mr. Dean and Mr. Krogh to Mr.
Magrude)- regarding Mr. Liddv as a counsel. That is what I recall is
in that 8(^2.
Senator Kexxedy. Now, on the 24th you saw the 302 '?
G17
Mr. Gray. Xo, Senator KeniUMly. On the 24th, I believe my testi-
mony is that I read the note attached to a teletype sunnnarizing the
interview and tlie note itself h.ad a!)solutelv nothino- in it alono; those
lines.
Senator Kennedy. On what lines, you mean about
Mr. Gray. The recommendation for counsel.
Senator Kennedy. But that Dean was invoh'ed at all ?
Mr. Gray. No. Xo, it did not say that. That is the best of my recollec-
tion. I don't have that in front of me, but that is available to the chair-
man and to the ranking minority member. The best of my recollection
is that there was nothiiig in there that alerted me to Dean's being
involved in a reconniiendation at all.
Senator Kennedy. And no mention of Mr. Liddy, either ?
Mr. Gray. Xot as I recall in connection with ]Mr. Dean. This is going
to have to be looked at by the people vrho have access to this file. But
I do not recall.
Senator Kennedy. None of us — or, at least very few of us — can look
at it, and that is part of the problem at this particular time.
But your testimony is that you did not look at the 302 ?
]Mr. Gr^\y. Xo, sir. 1 did not have it.
Senator Kennedy. You looked at what ?
]SIr. Gray. I looked at the white note that is put on the upper left-
hand side of a pink teletype. That is my best recollection.
Senator Kennedy. So you were not put on notice at this time of
any-
Mr. Gray. Xo, sir, and I don't think I have been put on notice at any
time here with Mr. Dean being involved, nothing in the evidentiary
pattern that indicated
Senator Kennedy. Do you think the chances of your being put on
notice would have been greater if people in the Department had known
of the Dean request initially ?
Mr. Gray. The people in the Department of Justice ?
Senator Kennedy, Yes, in your own Department, if they had known
Dean had made this request, if ]SIr. Felt knew about it, if your investi-
gators knew about it; if the people within the FBI knew that requests
from Mr, Dean were coming forward and then if your agents who
interviewed Magruder on July 20 flagged or at least saw the name of
Dean and Liddy together, would they have been more alert as to noti-
fying you ?
]Mr,"GRAY, Xo. I don't think so. Senator Kennedy, bedause this was
discussed with Mr. Felt. But even from that point to tliis point, we
have not seen anything in the development of the leads, in the evidenti-
ary pattern, to indicate this kind of aji involvement.
Senator Kennedy. But it was just at the level of Mr. Felt ? It was
none of the investigators that were working on the case ?
Mr. Gray. Xo, sir ; it was not.
Senator Kennedy, Xone of them knew about this request of Mr.
Dean for
Mr. Gray. I don't believe they did, unless they knew about the re-
quest of the Office of Legal Counsel through the normal grapevine in
the FBI, but I certainly didn't tell them.
Senator Kennedy. Then on the 26th, ]SIr. Dean asked for the raw
files ; is that correct ?
618
Mr. GrxVt. The 26tli of July, yes.
Senator Kennedy. He asked for the raw files ?
Mr. Gray. Well, no, he didn't ask for the raw files. He asked that
he be provided with investigative reports or teletypes that were avail-
able to me that would assist him in the conduct of his investigation and
inquiry for the President.
Senator Kennedy. Well, the Kleindienst thing, those are raw files
under his interpretation ?
Mr. Gray. Mr. Dean didn't talk to him — I am trying to respond to
your question — he didn't talk to me in terms of raw files.
Senator Kennedy. He asked for the investigative report ?
Mr. Gray. That is correct.
Senator Kennedy. Do you consider those raw files ?
Mr. Gray. They are a part of the raw files ; yes, sir.
Senator Kennedy. Well, are they themselves raw files ? Do you con-
sider them to be investigative reports ?
Mr. Gray. Yes, sir ; they are an integral part of the total Watergate
file.
Senator Kennedy. Well, now, what did you say to Dean ?
Mr. Gray. I can't remember the exact substance of the conversation.
Senator Kennedy. Try. Yes or no.
Mr. Gray. My recollection is that if you require these in order to
conduct your inquiry, I will provide you with those that I have here.
Senator Kennedy. Well, what changed your mind from a week
earlier ?
Mr. Gray. I don't think there was any change in mind at all. Senator
Kennedy. At least it didn't come to me as a change of mind. It wasn't
something he was asking me to generate or write or prepare. It was
something I had in my custody and something he was entitled to as
counsel to the President, acting in his official capacity to conduct that
investigation.
Senator Kennedy. Did you send them through the White House
liaison ?
Mr. Gray. No, sir ; those were picked up direct.
Senator Kennedy. ^Vlio picked them up ?
Mr. Gray. Mr. Dean picked them up.
_ Senator Kennedy. He carried them out ?
Mr. Gray. He carried them out.
Senator Kennedy. Is that the ordinary way ?
Mr. Gray. No, because of the safeguarding that was necessary and I
wanted to have on those, that they were in his hands, and nowhere else,
that they weren't getting anywhere else. We did discuss the safe-
guarding.
Senator Kennedy. "V^-liat about the FBI couriers and the "\^niite
House liaison that transmit secret stuff, aren't they secure ?
Mr. Gray. I don't know where that goes.
Senator Kennedy. Do you know whom your men deliver to?
Mr. Gray. They may deliver to an office in the TV^ite House for
deliveiT.
Senator Kennedy. Well, now, Mr. Gray, they do not just drop oif
top secret stuff.
Mr. Gray. No, I know they don't do that. There is a specific place
for them to drop it off. "What I am saying is I want it to go to the man.
619
Senator Kennedy. Don't they do that routinely, deliver material
just to the men in the "^Miite House? Isn't that standard procedure?
Mr. Gray. That is correct, that is normal procedure, but in this case
I wanted to be absolutely certain that I was delivering them to the
counsel for the President, who had requested it and who was going- to
conduct this investigation for the President.
Senator Kennedy. Did anybody on your staff know that this request
had been made and that this material was being made available ?
Mr. Gray. I don't believe they did, Senator.
Senator Kennedy. "VYliy not ?
Mr. Gray. I didn't think it was a matter that I should discuss with
them.
Senator Kennedy. Wliy not, if it is perfectly legitimate, if you are
going to do this for any President at any given time, Democrat or
Eepublican, why wouldn't you let the people on your staif understand
that?
Mr. Gray. I had no point in not doing it or any point in informing
them. There are a lot of things I don't inform people about over there.
You have to operate an investigative agency in that manner. You
don't publicize.
Senator Kennedy. Were there any transmittal memos ?
Mr. Gray. No, sir.
Senator Kennedy. Did you have any note in any file about what
materials
Mr. Gray. Yes, sir, because there were yellow sheet in^-entories at
the top of each packet of material.
Senator Kennedy. Have those been made available to the committee,
the records of the things that were turned over ?
Mr. Gray. No, sir, that has not been placed in the public record.
Senator Kennedy. Is there any reason why we could not have the list
of materials that were made available during this period of tim.e to
]Mr. Dean or to others ?
Mr. Gray. I don't know that it was made ai^ailable to any others,
Senator Kennedy.
Senator Kennedy. But the transmittal memo, could you make that
available to our chairman ?
Mr. Gray. No, sir, there was no transmittal memo. There was a yel-
low inventory sheet right on the top of the packet of the first group
of 302's that' I received on June 30 and on the second group of 302"s
that I received on July 17.
Senator Kennedy. But did you put anything in the FBI files to show
that this material had gone out ?
Mr. Gray. No, sir.
Senator Kennedy. Have you had occasion to do that any other time ?
Mr. Gray. No, sir.
Senator Kennedy. Wliy did you do it this time ?
Mr. Gray. Because I thought this was a question of sufficient im-
portance to the President of the United States to know whether or
not any of his staif were involved in the Watergate.
Senator Kennedy. Well, when you had the earlier request from
INIr. Dean, you got the legal viewpoint about dissemination of material
generally, and "the last line says, "We ought to keep the Attorney
General" fully informed and leave the rest to him." You sent that
620
memorandum over to the Attorney General and at the bottom of tliat
3'ou say, "In this particular case and all future cases.*'
A week later you are providing secretly a considerable amount of
material to Mr. Dean who is going out of your office and bringing it
back to the "White House. Noav, what happened during this period of
time, a week, that made you change your mind from what you wrote at
the bottom of your memorandums right here ?
^Ir. Gray. Absolutely nothing happened during that week that made
me change my mind. That memorandum was directed to papers and
documents that we would prepare in writing in summary form or
LHM form or that type of thing. It was not directed to this type of
material.
Senator Kennedy. You mean. Mr. Gray, that if you write it up you
send it through the AG, but if it is raw you give it directly? Is that
my understanding ?
Mr. Gray. That is my understanding.
Senator Kennedy. How can you })ossibly rationalize that? If you
draft it, you are going to keep the Attorney General fully informed.
But then you provide to the White House the raw material which you
say is indispensable to the investigation and you do not even let the
Attorney General knov\'.
Mr. Gray. I can say there is nothing tliat happened, except that I
made the decision in response to the call from the Counsel to the
President.
Senator Kennedy. And did you let the Attorney General know?
Mr. Gray. Xo, sir, I did not tell the Attorney General.
Senator Kennedy. What were the files that were actually made
available ? Were they just your own files or files which were a part of
the investigation ?
Mr. Gray. Xo, they were not files. They were FD 302's, investigative
reports, and then there were two volumes of teletypes made available
later on.
Senator Kennedy. There were what ?
]Mr. Gray. Two volumes of teletypes about, I would estimate, 3
to 4 inches thick, the two volumes came to that.
Senator Kennedy. A^Tien were those
Mr. Gray. Those were later on. I received those, as I recollect, early
August, and those were delivered in October.
Senator Kennedy. You had, as I remember, 82 out of 186 ?
Mr. Gray. Yes, sir, these are FD 302's now, investigative reports.
Senator Kennedy. Could you review why you let him have just
some of these, why the 82 out of 186 ?
]Mr. Gray. Yes, because I received a group of them on the 30th day
of June. I received another group on the ITth day of July, and those
two groups are the two packets that I delivered to Mr. Dean on the
28th day of July.
Senator Kennedy. Did these, the 82 documents that you provided,
relate only to the A^Tiite House staff ?
ISIr. Gray. Xo, sir, I didn't make any selection on those at all.
Senator Kennedy. "Why not ?
Mr. Gray. Those were the ones that were available, the 302^3 that I
had there in my safe and had been sent up to me in two packets on
June 30 and July 17.
621
Senator Kexxedy. If Mr. Dean was doing an investigation of the
AYhite House stalf, why Avouldn't jou turn over just those records tliat
related to tliat ?
!Mr. Gray. My reasoning on it was his trails were going to go in
many areas. I didn't know what he was doing. I wanted him to know
what we had.
Senator Kennedy. You did not know what he was doing?
Mr. Gray. No, I didn't know^ what he was looking for.
Senator Kennedy. Yfhat did he tell you ?
]Mr. Gray. He told me he was conducting an inquiry but he and I
did not discuss the substance of his inquir}- or the substance of the FBI
inquir3\ We were doing ours in our own way and he was doing his in
his own way. I have testified earlier that I didnt' want to have anj^
information from his inquiry at all.
Senator Kennedy. I thought you indicated in earlier testimony that
his inquiry was in relationship to the White House staff ?
Mr, Gray. That is right, to the involvement of White House per-
sonnel.
Senator Kennedy. YHiy would you supply
]\Ir, Gray. They could turn up in other investigative reports.
Senator Kennedy. Why wouldn't you make sure he got all of them ?
;Mr. Gray. I gave him all that I had" at the time.
Senator Kennedy. Y-liy didn't you get the rest of them ?
Mr. Gray. Because there weren't any more available at that time,
sir.
Senator Kennedy. Till when? Did you try to get the rest of them
for him ?
^Ir. Gray. Those were all that were available. These were delivered
to me — early on the 30th of June, I received a group, and on the ITth
of Julj^ I received a group and I gave to him what I had available at
that time.
Senator Kennedy. There were a lot of jDeoi^le interviewed after the
ITth of July?
'Sir. Gray. That is right.
Senator Kennedy. Did you send those to him, as you recall?
Mr. Gray. No, as I recollect there was another call, and I thinlc that
it came later on, much later on — yes, it was in the middle of October —
where he called me and asked if he could look at some additional in-
vestigative reports and teletypes, and I sent to him at that time the last
group of investigative reports that I had in my safe and the two vol-
umes of the teletypes.
Senator Kennedy. And did you, or did you not, ever feel any kind
of responsibility to call liim later and let him know that you could get
other reports?
Mr. Gray. No, I did not, as I was responding to his request.
Senator Kennedy. And you thought that you did respond when you
made those files available?
Mr. Gray. If he wanted more, I would have expected he would have
called again and made another request.
Senator Kennedy. In any of your conversations did you ever talk
to him about Mr. Liddy ?
Mr. Gray. I think not, because it is my best recollection and memory
that we did not discuss individuals.
91-3.S1 — 73—40
622
Senator Kennedy. Well, let's try again. You must have been talking
about some individuals, were you not ?
Mr. Gray. In connection witli some of the leaks, but what I am talk-
ing about now is a matter of investigation.
Senator Kennedy. Did he say he was interested in these particular
files, too ?
Mr, Gr.vy. No, he did not specify any particular file to me at all.
Senator Kennedy. And your testimony is, to the best of your recol-
lection, that you never remember a convei-sation you had with Dean
with regard to Mr. Liddy ?
Mr. Gray. That is the best of my recollection, unless it could have
come up in connection with — I am trying to think, because I know that
Mr. Liddy was the subject of the stories on the second Nixon aide, and
it could have come up in that context.
Senator Kennedy. How is that ?
Mr. Gray. In one of these telephone calls with regard to the leaking
of material.
Senator Kennedy. Could you account for us to the best
Mr. Gray. No, I am saying it could have come up, because I can't
recollect at all that this was
Senator Kennedy. Would you check your file ?
Mr. Gray. I am taking a look at my sheet here, and I have no notes
on that particular individual.
Senator Kennedy. Could you review it during the lunch hour, if
you have any you can find ?
Mr. Gr-\y. Sure, I will be glad to do that, Senator Kennedy.
Senator Kennedy. Finally, could you just tell us to the best of your
own memory how you distinguish the Dean request for this informa-
tion that you were prepared to provide for him on July 26 as compared
to the earlier request on July 21 ? Can you not understand, Mr. Gray,
the perplexity that some might have about the way you handled one
request on July 21, by getting a legal response and indicating at the
bottom of it that a certain procedure should be followed, and then 5
days later an apparent complete turnaround in the procedures which
you yourself had established. It is in an effort to try to fill in the pieces
with something other than, "^Vell, I made the decision on the 21st to do
it this way and on the 26t]i to do it this way," when they involve some
very basic issues and questions that have, been raised in the meantime,
such as the apparent revelation to FBI agents that Mr. Liddy and
Mr. Dean were closely connected.
Mr. Gray. Yes, and I think you have to know the operations of the
FBI as I think I know them and how the practices were established
for dissemination, and the objectives that I was trying to achieve step
by step. But other than that kind of rationale, I didn't go through a
long exercise. This was the counsel to the President of tlie LTnited
States calling me in his official capacity and asking if I could assist
him in the conduct of his inquiry by making available to him investi-
gative reports.
Senator Kennedy. It just seems to me that the standard procedures
which you have just mentioned now would require that at least you
would follow the procedures which have been outlined here, that you
keep slips of paper indicating what files went out, what went in, that
there be some kind of communication between the various members
623
who \A-ere involved in these in^'estigations, and that the Attorney Gen-
eral would be kept notified where these files were going. It appears
that you established a set of standards for procedures and then 5 days
later you do it entirely differently, and what we are trying to find out
is the reason for that.
Mr. Gray. Yes, and I reasoned, as I have previously testified, that
these were two different types of materials that I was addressing
myself to.
Senator Kennedy. "Well, this seemed to outline procedures to be
used in this particular case and all future cases. That seems to be the
proper procedure which is outlined to your own people and then you
follow a rather dramatic
Mr. Gray. To the preparation of LHM's, memorandums to the
White House that we have to generate in response to a request, that we
have to sit down and write something out.
Senator Kennedy, Is the raw material more sensitive or less sensi-
tive than the investigative reports which you say should be handled
along the lines of this memorandum ?
Mr, Gray, No, because that LHM is summary type material.
Senator Kennedy, Is the raw material more or less sensitive? I don't
see how you could say it is less sensitive, for following this procedure,
and yet you are apparently turning the undigested materials directly
over to the counsel, Mr. Dean, without any kind of notification to the
Attorney General, without any kind of inclusion of a buck slip or any
record of material, and using your own files, rather than
Mr. Gray, There were inventory slips there, I laiow exactly what
was transferred — transmitted — and I laiow exactly what was received
and everything that was transmitted was returned.
Senator Kennedy, Was that kept in the FBI file or
Mr. Gray, It is right with the file itself.
Senator Kennedy, T\%at was taken out and when was it taken out ?
Mr. Gray, It is right with the file.
Senator Kennedy, Has that been made available to the chairman ?
Mr. Gray, The chairman can see it, and the ranking minority
member.
Senator Kennedy. Will that be made available, so we can ask our
chairman ?
Mr, Gray. Yes, that will be made available when the chainnan
wishes it.
Senator Kennedy. Do you know when the President announced that
Dean's investigation was complete and that no "\'niite House staff were
involved ?
Mr. Gray, I think that was probably either the end of August or the
first part of September, somewhere in that area.
Senator Kennedy. Well, then why were j'ou providing files as late
as October?
Mr. Gray. Because I think probably Mr. Dean was still continuing
his inquiry. That is what I have got to believe.
Senator Kennedy. Even after the President made his statement,
you felt that you still ought to be providing files to Mr. Dean ?
Mr, Gray. Certainly, because I didn't attribute that to be a complete
statement to the effect that Mr. Dean's inquiry had been concluded,
otherwise he wouldn't have called me at the end for the material
Senator.
624
Senator Kexnedy. Wo]], if ]ie ]iad been acting in any otlier capacity^
lie mig]it. Have you ever tlioiiglit of tliat i
Mr. Gkay. Of course, but at no time did I view Mr. Dean as acting
in any capacity otlier than as counsel to the President.
Senator Kennedy. So even after tlie President made liis statement
that the White House was not involved, and you understood that to
be the purpose and the reason and justification for the Dean investiga-
tion, you still felt tliat you ouglit to continue to provide tlie material ?
Mr. Gray. Indeed, I clid. Senator Kennedy.
Senator Kennedy. At any time did you stop providing it ?
Mr. Gray. Yes, because he liasn't called me since then.
Senator Kennedy. Do you do it only when he calls ?
Mr. Gray. Yes, that is correct.
Senator Kennedy. If he called you now, would you provide it?
]Mr. Gray. I thinii: pi'obably in view of the discussion we have had
that I would have to thinlv about it. but I thinlv I would because he is
the counsel to the President of the United States, and the President of
the United States is entitled to that.
Senator Kennedy. Given, Mr. Gray, all the things that have come up
in the course of these hearings, all the tie-ins with Mr. Dean and
Mr. Lickly, are you prepared now to suggest that if 'Mr. Dean asked
you for additional materials now with regard to this investigation,
given what you Icnow that has been laid out liere in terms of this record
in relation to Dean and Lidd}', that you would go ahead and supply
him with that information ?
Mr. Gray. Yes, I would, because, as I have testified, no evidentiary
pattern has developed that he has an}^ Ivind of relationship witli this
particular matter. He is acting in his capacity as counsel to the Presi-
dent of the United States.
Senator Kennedy. You do not think it is important that he intro-
duced Liddy to tlie CRP Committee ?
]\Ir. Gray. I can't make that jump that tliis indicates complicity on
his part, that he is involved in this. This was a recommendation —
my recollection of the FD 302 is — tliat came from him and from Mr.
Krogh in response to ^Ir. Magruder's request.
Senator Kennedy. Have you investigated Mr. Dean sufficiently so
tliat you can be absolutely sure that this was not the case?
Mr. Gray. I think from all of the investigation that we have done,
we have found no indications, no leads, and pursued no leads, and tied
him in in any way to this kind of thing.
•Senator Kennedy. You have investigated that and pursued that ?
Mr. Gray. I think our total investigation and
Senator Kennedy. Just as part of tlie total, but you haven't looked
on liim and, given the kind of flares that have been sent up in regards
to Dean and Liddy, you wouldn't feel, as a criminologist, that you
ought to pursue that to detect whetlier he actually is involved in this
and how extensively before you continue to turn raw investigative files
over to him ?
Mr. Gray. Xo, Senator Kennedy, I said earlier in these hearings —
I forget which day — tlie President of the United States is not going
to appoint his own counsel to conduct this investigation, for him to
determine this involvement, if the President believes Mr. Dean is
involved.
625
Senator Kennedy. ^Te are not sure what role JNIr. Dean is playing,
whether he was an attorney for Mr, Ehrlichman or an investigator
as he said to yon. That is very, vei^' much up in the air. Yet you are
prepared at this time to say, without resolving that question, and your
understanding is quite a bit diiTerent from JNIr. Ehrlichman's under-
standins:, that vou are still !)rei)ared to turn the material over?
]Mr. Gray. Yes, because ]Mr. Dean serves as counsel to the President
of the United States. He has an attorney-client relationship with the
President; and when the President requires him to conduct an investi-
gation, I am going to do it. It is my duty.
The CHAiR]\rAX. Well, 3'ou had to do it, didn't you?
]Mr. Gray. That is my dut}-.
The Chairmax. The President is entitled to those files?
Mr. Gray. That is correct, sir.
Senator Kennedy. Even though according to Magruder's testimony
]Mr. Dean took Liddy over to a briefing and said he is good at intel-
ligence gathering? You know Mr. Magruder's testimony on that, and
given all the things that you know, you would still be willing to turn
that material over?
Mr. Gray^ Yes, but I think it should be pointed out, too, Senator
Kennedy, that ^Ir. ]Magruder did not make a determination to hire
31r. Liddy on this basis alone. That was Mr. Krogh's recomm.enda-
tion, too.
Senator Kennedy. Would you, in this kind of situation, Mr. Gray,
think maybe you could call the President and saj- this is the kind
of a situation we are in, Mr. President, and before I go any further
I want 3-0U to be aware of what we are running into on this?
]Mr. Gray. No, sir, that thought didn't strike my mind.
Senator Kennedy. I wonder, if the President had sent ]\Ir. Hunt
down ?
Mr. Gray. Sir?
Senator Kennedy. I wonder if he had sent ]Mr. Hunt down to get
the material ?
]Mr. Gray. Xo, I think I previously testified to the committee that
as far as these requests are concerned, that the two assistants to the
President — I think I mentioned by name Mr. Haldeman, ]\Ir. Ehrlich-
man, and the counsel to the President.
Senator Kennedy. In a different area, and I will try not to be much
longer: I believe in your earlier testimony you said that immediately
upon seeing the newsstory alleging that FBI materials were given to
Segretti, you called Dean and he denied responsibility. The news-
paper clippings indicate that the story appeared on October 15. Your
submission for the record shows no call to Dean on that day, but only
3 days later, on the 18th, and a meeting with Dean 3 days later, again
on the 18th, when newspapers reported Segretti calls to the White
House. Could vou be mistaken about your call to Dean, what it was
about ?
]Mr. Gray. Xo, sir, I think that one— well, I had a series of calls
out at Salt Lake Citv about this. These were from my own people
in the Bureau, from 'Mr. Felt. I was apprised of this by Mr. Felt.
I had several discussions out in Salt Lake City with :Mr. Felt, and we
cannot determine with any degree of certainty whether or not I talked
with ]Mr. Dean on the ITth from Salt Lake City.
626
We have endeavored to do so, and my best recollection, and so
recorded here, is that on October 18, I discussed that with him when
I had that particular newspaper in hand in my office.
Senator Kennedy. But this happened on the 15th and you think
maybe you talked to him on what, the ITth ?
Mr, Gray. What I am saying is tliere is a- possibility that I did,
because there was a call, but we can't pin it down. Certainly there was
a call referred out there and we can't pin down for certain whether
or not I returned that call when I was in the Salt Palace. I VvT^s holding
a press availability and I was making an address there.
Senator Kexxedy. Does the list you provided include all the calls,
or some that are or some that aren't
Mr. GitAY. This list includes all the calls that can be tied down that
are definitely and certainly Watergate calls.
Senator Kennedy. There may ha^'e been other calls ?
Mr. Gray. On what, sir ?
Senator Kennedy. On Watei-gate or anything else ?
Mr. Gray. Xo, because I can account for the other calls.
Senator Kennedy. You had one possible call to — —
Mr. Gray. Yes, the one I can't tie down is the one on tlie ITth. But
I ]nit it there because I believe it had to be a Watergate call. I was
called on the IGth by ISIr. Felt in his usual way as he called me when
I was visiting the field offices, and he read off certain items to me and
one of these had to do with this particular news story.
Senator Kennedy. And then there may or may not have been a call
on the 17th ?
Mr. Gray. That is my testimony. We have not been able to tie it
down. We know a call was referred to the Salt Lake City office. We
know that.
Senator Kennedy. Well, in your testimony you say that :
"I can tell you this, when the newspaper report hit I called John
Dean if he had done this and he said, 'I did not, didn't even have those
documents with me.' "
Mr. Gray. I tliink there are any number of places there in my testi-
mony when I heard it or read it, and I was trying to remember. I
hadn't yet conducted this pretty thorough review of telephone calls
and the calendar and my notes of my visits to the field offices.
Senator Kennedy. Then you said :
"I read the story and called John Dean and asked him if he did this."
Mr. Gray. That is correct.
Senator Kennedy. You read the storv when you came back from
Salt Lake?
Mr. Gpa.Y. That is correct.
Senator Kennedy. Which was really 3 days after that ?
Mr. Gray. That is correct.
Senator Kennedy. Mr. Gray. I think you are probably familiar
with some newspaper stories which liaA'e mentioned a number of dif-
ferent potentially embarrassing situations which may involve high-
ranking people, i sup]iose it takes place in any administration. Demo-
cratic or Republican. What are you going to do if you are called upon
to investigate people who have been friends of Presidents or bene-
factors or whatever? What are you going to do if you get the impres-
sion that as a result of files going to the White House pressure is being
627
applied down througli the Justice Department I What will be 3'our
general reaction?
Mr. Gray. My first reaction, Senator Kennedy is going to be to
resist. I think I have already said to this committee if there comes a
time when that conflict situation arises, and I can't live with it, I am
going to have to depart.
Senator Kexxedy. How about a situation such as the Vesco case,
inA'olving political contributions. Do you continue to make investiga-
tive files available to the "\'\niite House ?
Mr. Gray. Senator, if I am put in a position again where the counsel
to the President of the United States is charged with the responsi-
bility to conduct an inquiry by the President, I am probably, I am
certainly going to comply with that, yes. sir.
Senator Kenxedy. Has there been an}- time to date that you can
tell us about that you felt any pressures at all ?
Mr. Gray. In the present position ?
Senator Kennedy. I want you to think about this and other investi-
gations which you might be involved in, either direct investigation or
perhaps even the continuation of an investigation such as a wire tap
situation, where there have been strong recommendations witliin your
department, or in the investigating department, for continuation and
full prosecution of this, yet there have been the suggestions of poten-
tial embarrassment and you felt at least a kind of restraint or
resistance ?
Mr. Gray. Normally, it doesn't really happen that way in this posi-
tion, because we investigate and we do the best possible job that we
can do and we deliver the results to the Depaitment of Justice.
I think it was Senator Bayh who asked me a similar question — had
I ever felt anv pressures — and I had mentioned to him that there was
an occasion when I did, as Assistant Attorney General, Civil Division,
in which there was a case that hadn't anything to do with this, either
ITT or anything else.
Senator Kennedy. Could you imagine, for example, a situation in
which, during the course of an investigation, perhaps a particular
wiretap ought to be continued, under a court order, but where the pre-
liminary parts of it might either mention people or situations that
would be potentially embarrassing to the administration or the Presi-
dent ? "Wliat would you do ?
Mr. Gr^vy. Senator Kennedy. I am not sure that it could come xi]^
that way, because the court receives that transcript, the assistant U.S.
attorney receives it, so I am not sure it could come up that way. But
my answer to you, Senator Kennedy, would still be that I would resist
pressure or failing that I think I would have to depart.
Senator Kennedy. "Well, if 3'ou were. say. to have a continuation of
a wiretap, wouldn't you have to go back to the Justice Department to
get continued approval ?
Mr. Gray. Under title III. under the other ones, yes, sir.
Senator Kennedy. In this area, is it your testimony that there has
not been any time when you felt any type of pressure from the top,
when there was pressure from below to continue a particular investi-
gation, say, in the area of organized crime, and yet there was concern
about the continuation of it from the top ?
Mr. Gray. I know of no such situation.
G2S
Senator Kenxedy. If there were such an incident what would vou
do?
Mr. Gi^AY. My reaction would be to resist and protest and do vrhat-
ever I could to carry out the investigative function.
Senator Kennedy. Whom would you protest to ?
]Mr. Gray. Well, I vrould have to resist within the Department,
because that is Avhere I exist. That is where I live, in the Department
of Justice.
Senator Kexxedy. Mr. Gray, looking back over the course of these
hearings, the course of the questions by Members of the Senate, and
your own conduct over this period of time, can you think of things
that you would have done differently — I think you commented yester-
day— in relationship to the speeches, in relationship to the availability
of materials, or other things, which is now really ]Mondav mornins:
quarterbacknig.
iNIr. Gray. Tliat is right, in hindsight.
Senator Kexxedy. Yes, in hindsight.
^Ir. Gray. In hindsight. Senator, you can see there are things you
might do differently when you take anotlier look at them. I mentioned
some of those, with regard to the so-called political speeches, that is
correct.
Senator Kexxedy. It would be only the political speeches
Mr. Gray. No. I think, Senator, when you do a careful analysis of
an investigation, any investigation conducted by anybody at any
time, and vou look at it as we have been looking at this one, very, very
carefully. I think you can see things where you would haye taken
some different steps. I think this is true.
Senator Kexxedy. On the availability of materials or the
IMr. Gray. I would not single out any specific area at all. Senator
Kennedy,
Senator Kexxedy. I don't know M-hat the chairman wants to do.
I have just a couple other areas.
The CuAiRMAX. Well, let's see if we can finish up. We will recess
to 2 o'clock.
[^^Hiereupon. at 12 :05 p.m.. the committee recessed, to reconvene
at 2 p.m., the same day.]
AFTERXOOX' SESSIOX'
The Chaiemax. The committee will come to order.
Senator Kexxedy. ]Mr. Gray, just before the lunch hour we were
talking about making availal^le to the White House certain files. I
think we reviewed the files that you had provided directly to Mr. Dean
when he came to yisit you. Thei-e is really no particular secrecy about
the fact that materials are being furnished to the White House, is
there, just generally?
TESTIMONY OF LOUIS PATEICK GEAY III— Eesmned
jNIr. Gray. Xo, I don't think there is.
Senator Kexxedy. For example, ^-our own June 19 memorandum to
the Attorney General, which was ncA'er sent, said that a copy of the
enclosed memorandum Avas also being furnished to the Honorable
629
H. R. Haldeman, Assistant to the President. I think you are probably
familiar with it.
]Mr. Gray. Yes. I am.
Senator Kex:':edy. At the bottom is the figure 14, from which I
would gather there were 14 copies ?
]Mr. Gr-\t. I don't know what that 14 is.
Senator Kennedy. In any event, the practice of making copies —
that was really the usual process, wasn't it ?
Mr. Gray. Of a writing of that type, in the form of a summary
letterhead memorandum, as distinguished from a note or another type
of memorandum or writing, which was initiated by us, something that
we generated Avithout a request.
Senator Kexxedy. Well, even if it is requested, I think j'ou indicated
in this morning's questioning, the procedure was that you usually send
it over to the Attorney General ?
Mr. Gray. That is right, sir. I have said, in connection with the
types of distribution and dissemination that have been made in the
past by the FBI, that I have been trying to move toward a standard
for all things that would be in the nature of writings or memorandums
or notes that would be disseminated and distributed.
Senator Kennedy. Xow, did you ever indicate to the Attorney Gen-
eral that you were disseminating, in effect, raw files to the White
House ?
Mr. Gray. I never indicated, as I testified this morning, Senator
Kennedy, to the Attorney General, that I was giving to Mr. Dean the
investigative reports and the two A'olumes of the teletypes, no, sir.
Senator Kennedy. Did that thought come to your mind? Or did 30U
feel it was not necessary ?
Mr. Gray. Xo, sir, it did not come to my mind. I did not feel it was
necessary in view of the fact I had a request from the counsel to the
President of the United States.
Senator Kennedy. Is there anj^ paper lecord at all in the regular
FBI files that would show^ that these important materials were actually
presented ?
Mr. Gray. Other than the inventories themselves with each packet
of the investigative reports.
Senator Kennedy. But this is reallv, in effect, out of channels, is
it not ?
Mr. Gray. I do not think it is out of channels to make a delivery to
the counsel to tlie President. I just do not see how that can be out of
channels.
Senator Kennedy. Xo recording of it in the FBI files, no following
of the procedure you indicated on your earlier legal memorandums
that it be turned over to the Attorney General, neither of those pro-
cedures were •
Mr. Gray. Xo. I testified this morning to that effect.
Senator Kennedy. At any time, did anyone protest, either then or
since, about sending raw files over to the White House ?
]Mr. Gray. Senator Kennedy, I did not send raw files to the White
House. I sent FD 302's, investigative reports, and two volumes of
teletypes, and no, I have had no protest to my face since then. I don't
know whether anybody is protesting in another manner.
630
Senator Kexnedt. You indicated this morning that you were in
touch with Dean, I think, all the way up until October, you were pro-
Adding materials? I believe you indicated that?
Mr, GRAT^That is correct, I believe, sir. Yes, October 12, 1972,
Senator Kennedy, Were there a series of transactions between you
and Mr. Dean after this? iSIeetings after the ones indicated in your
memorandums ?
]Mr, Gray, No, sir.
Senator Kexxedt. How did Mr. Dean get the information after this
July meeting ?
Mr. Gray. The October 12 delivery to him was picked up by
ISIr. Fielding, the assistant counsel to the President.
Senator Kennedy. Mr, Fielding ?
Mr, Gray, Yes, sir. He came over, and I gave him a briefcase with
materials in them.
Senator Kennedy, Did Mr. Dean call you before that ?
INIr. Gr-\y^ Yes, he did. He called me October 12. That call is listed.
Senator Kennedy. At any other times were there transactions of any
other materials ?
JNIr. Gray. No, sir.
Senator Kennedy. And the October date?
Mr. Gray. That is correct, sir.
Senator Kennedy, In your conversation with Mr, Dean about re-
quests for additional files, did you perhaps have an opportunity to
mention to him that you had seen the President's August 29 press
conference where he said he was satisfied with the White House
investigation ?
JNIr, Gray. No.
Senator Kennedy. Did he indicate to you that the investigation was
still continuing?
Mr, Gr^vy, He did not, but as I testified this morning I have cer-
tainly to assume that it was continuing then and it may even be con-
tinuing now, I don't know. The only indication I have now that it may
be continuing is the fact at the time of the later interview, either
January or February — I guess it was February- — when he called re-
garding the information we had received, if we wanted to interview
Mr, Chapin again. So I don't know. That would be speculative and
conjecture on my part.
Senator Kennedy. After the October 12 conversation, when did you
talk to him again ?
j\Ir, Gray, Well, I submitted for the record the list of those tele-
phone calls, and the next one was on the 18th of October at 9 :05 a.m„
there was a telephone call.
Senator Kennedy. How many are there between then and the
February date?
Mr. Gray. There is one on the 8th of January 1973 ; that is when
I called him to request the return of the second group of investiga-
tive reports.
Senator Kennedy. I think you testified that in the early part of
your investigation, one of your people prepared a summary on June
19 to send to Mr. Haldeman and that you stopped that ?
]Mr. Gray. That is correct, sir.
Senator Kennedy. Now, your submission to the committee about
your contacts with the AYliite House shows that Ehrlichman called
631
you and Dean was in your office 2 days after that, I think it was on
June 21. Do you Imow if Dean saw the whole memorandum?
Mr. Gray. No, sir, he did not.
Senator Kennedy. Did anyone ever see the whole memorandum?
Mr. Gray. I think only people in the Federal Bureau of Investiga-
tion, because that was not sent anywhere.
Senator Kennedy. But there is no way that Mr. Dean might have
seen it ?
Mr. Gray. No way, sir. No way.
Senator Kennedy. Could any of your subordinates have shown it
to him ?
Mr. Gray. I certainly doubt that very, very much. I have not asked
each subordinate, but I doubt that very, very much.
Senator Kjennedy. Has any other person from the Wliite House
staff visited your office ?
iSIr. Gray. I know I had a meeting on terrorism, on control of
terrorism. I am trying to think of the time.
Senator Kennedy. "VVHio was there ; do you know ?
]\Ir. Gray. It would be — I think my memory is good on this — it
would be Jeoffrey Sheppard, Fred Fielding, myself, Mr. Felt, and
]Mr. Ponder, and that was just about the middle of September.
Senator Kennedy. Is Fielding the same Fielding who picked up
the material?
Mr. Gray. That is right. He is the assistant counsel to the President.
Senator Kennedy. Any other meetings with any AVhite House
personnel ?
jNIr. Gr.\y. Not in my office. I went over to the Executive Office
Building for an 0MB meeting on our budget with Mr. Mark Alger,
and that was — I think that was October. And then after I came back
from my illness — I am trying to remember — it was either January or
February when I went over again to FOB-7 to appear before a nar-
cotics panel with regard to the role of the FBI in the narcotics traf-
ficking field.
Senator Kennedy. These were the only contacts that you had with
any White House aides during this period ?
^Ir. Gray. The only meetings that I can remember; yes, sir.
Senator Kennedy. Any other phone calls ?
Mr. Gray. Gee, I can't recall the phone calls. Senator Kennedy.
Senator Kennedy. Has anyone from the White House besides Dean
ever seen the files from your office ?
Mr. Gray. No, sir, he didn't look at them in my office.
Senator Kennedy. Has anyone from the White House personally
taken any files?
Mr. Gray. No, sir.
Senator Kennedy. And the record which you have submitted, and
chronology, is the complete number of times that Mr. Dean visited you
or that you called him ?
Mr, Gray. That is correct, sir.
Senator Kennedy. And there are no other phone calls ?
]Mr. Gr.\y. This is the accurate record to the best of mj- recollection
and ability. I might say, Senator Kennedy, that I believe it to be
accurate.
632
Senator Kenxedy. You had meetings, I guess, with Mr. Dean and
Mv. Ehrlichman, who called you on the carpet about the leaks, I be-
lieve you testified to that ?
yiv. Gray. That is correct, sir.
Senator Kexxedy. What did they vsant done ? Did they want you
to conduct an investigation ?
yiv. Gray. They wanted me to conduct an investigation, there is no
question about that, but tliey were obviously concerned about the fact
that apparently FBI information, at least attributed to the FBI, was
ending up in newsstories. I consistently pointed out that this was not
the case, that there were many people who were investigating this par-
ticular affair, and that I simply did not believe that FBI agents were
doing the kind of thing that would a]}pear in these stories. But the
stories very plainly made it appear that this was FBI information.
Senator Kexxedy. Did you call an investisation ?
Mr.Gn-VY.Sir?
Senator Kexxedy. Did you call an investigation in one of your
offices ?
Mr. Gr.\y. Did I call an investigation of one of my offices?
Senator Kexxedy. Yes.
Mr. Gray. Not as a formal thing ; no, sir.
Senator Kexxedy. As an informal investigation ?
^Ir. Gr^vy. We have techniques and tactics, things we do or try to
run down these things without a formal inquiry or investigation.
Senator Kexxedy. Is that called a spot investigation ?
]Mr. Gr.\y. Xo. it is not called a spot investigation.
Senator Ivexxedy. W^hat is it called ?
Mr. Gray. The different types of things we do, I would rather r^ot
reveal them.
Senator Kexxedy. Would you just tell us what the name of these
investigations are ?
^Ir. Gray. Xo, we don't have a name for it. Senator Kennedy.
Senator Kexxedy. But it is an investigation ?
yh: Gray. Well, if a person thinks of an investigation as an on-
going formal thing where people are interviewed and this kind of
thing, yes and no. But different techniciues are used, and I would like
not to discuss this any fiu-ther to tell you how we try to do these
things.
Senator Kexxedy. That couldn't be what Time magazine was talk-
ing about, one of those types of investigations to check out leaks ?
Mr. Gray. No, I don't think it is that type of investigation at all,
Seriator Kennedy, and I don't have that type of investigation in
mind. Believe mel I have something else in mind.
Senator Kexxedy. Did you find out anything as a result of investi-
gation about leaks in the FBI ?
]Mr. Gray. No, sir, we were never able to pin those down and
attribute them to the FBI.
Senator Kexxedy. And so it was outside the FBI ? At least it was
vour conclusion it was outside the FBI ?
Mr. Gray. We have to conclude that, but I am still not going to sit
here and sav that it is not possible that some of that material came
from the FBI. There is really no foolproof way, you Imow, to do this
633
so that I could say to you that I am absohitely positive. And I say
this to the people in the FBI, We cannot be absolutely positive.
Senator Iienxedt. Did you form a conclusion in your own mind
that it might be the White House that leaked some of this out ?
Mr, Gray. No, sir, I did not.
Senator I^nnedt. Did ]Mr. Dean ever ask vou to investigate the
leakage from the Wliite House ?
jNIr. Grat, Xo, sir.
Senator Kenxedt, Did you ever suggest to him that maybe it ^Yas
from the White House ?
]Mr, Gray, I suggested the possibility that the leaks could have come
from other people who were investigating in the city of Washington,
Senator Ivenxedy. Who was that ?
Mr. Gray. I was told, and I think it is correct, that there were an
awful lot of investigators looking into this, both committees were look-
ing into it, I am told, and we occasionally crossed paths of people
who were looking into this as we went about our investigation.
Senator Kennedy. Is my recollection correct that you testified you
gave Mr. Dean only the reports you had read ?
Mr. Gray. No, I testified I gave him those reports that I had either
read or looked through, but I may have said read. The reports that
were deli^•ered to him were reports that I either read in total, or the
administrative page and the cover page and synopsis and index to see
what was in them.
Senator Kennedy. Ha^e those particular items that you have just
mentioned here been made available to the committee's chairman?
Mr. Gray. The committee has not m.ade a request, neither the chair-
man nor the ranking minority member.
Senator Kennedy. Are we limited in making the request as v;ell as
seeing it?
Mv. Gray. As far as the request is concerned, if the request is made
in the regular manner from the committee, I am sure that it would fall
within the instructions that I have received.
Senator Kennedy. Could we get that material, Mr. Chairman?
Senator Hart [presiding]. You enter a broad order.
Senator Kennedy. You gave them tlie Magruder report, didn't you ?
Mr. Gray. Yes, sir, I believe that the Magruder report would be in
the third group of 10 reports that was delivered in October.
Senator Kennedy. ^Mien did you read that ?
Mr. Gray. I think I received those on the 13th of September, and it
would be in between the 13th of September and the 12th of October.
Senator Kennedy. Tliis was an interview which was on July 24?
Mr. GrxVY. That is correct, sir.
Senator Kennedy. And you read it in September?
Mr. Gray. That is correct, sir, that is my recollection of it, and I
think I testified this morning that I read the teletype, that note on the
teletype summarizing the report of the interview which itself was
conducted.
Senator Kennedy. That is the material we would be interested in
requesting with the chairman's understanding.
Mr. Gray. That teletype is part of the Watergate files.
Senator Kennedy. After you read the Magruder report about the
conversations with, and the involvement with, Mr. Liddy, what did
YOU think about this whole process ?
634
Mr. Gray. I thought it was nothing more than a recommendation of
a counsel and a seeking in the White House on the part of Magruder
to get some recommendations to get a counsel over to the committee.
Senator Kennedy. When you saw Mr. Dean's name mentioned and
the name of one of the defendants mentioned, what sort of antenna
went up?
Mr. Gray. No antenna went up. I couldn't make that kind of jump
at that point in time, that because he had recommended Liddy as a
counsel to the committee he had to be involved. And as I testified this
morning. Senator, I don't think the President is going to name his
counsel to conduct an inquiry of AVhite House involvement if he has
any reason to believe the counsel is involved.
Senator Kennedy. How is the President going to determine this ?
Mr. Gray. I think the President Imows perhaps even more than the
FBI Director about things that go on within the entire Nation. I don't
have the picture on the White House staff.
Senator Kennedy. Why is he requesting that information from you
if he already knows ?
Mr. Gray. That is the President I am talking about, Senator.
Senator Kennedy. That is the one I am talking about. If you say on
the one hand he knows more about it than you people, yet he has re-
quested you people to look into it, then he is relying upon you, isn't he ?
Mr. Gray. He knows more about his own staff and certainly he is not
going to have a man there as his counsel who is involved in any way.
Senator Kennedy. That is a presumption of regularity ?
Mr. Gray. That's got to be. I just can't sit liere and imagine that any
President of the United States is going to be sitting with a man that
close to him and working with him on a daily basis with an attorney-
client privilege and have this kind of situation.
Senator Kennedy. Other Presidents have made mistakes in these
areas, haven't they ?
Mr. Gray. Some of them have ; yes, sir.
Senator Kennedy. When you read that the man who was conducting
the investigation was either an acquaintance of, or introducing or rec-
ommending, one of the defendants, what did that mean to you ?
Mr. Gray. It didn't mean anything to me, to be absolutely honest
with you. It was a recommendation of an attorney to the committee,
period. I can't make that big a jump of guilt by association or anything
like that. It didn't raise that kind of antenna.
Senator Kennedy. Did you feel that you ought to look into that
some more to make sure that your own predilections were accurate ?
Mr. Gray. No, I didn't feel that.
Senator Kennedy. You felt you could turn those files over as well to
Mr. Dean?
Mr. Gray. Yes, I did, and I did so, Senator.
Senator Kennedy. Your antenna didn't go up about that either—
about turning files over to the President's investigator that mentioned
both the investigator and one of the prime defendants ?
Mr. Gray. No, I didn't because it wasn't mentioned in that type of
context. It was merely a statement from "Magruder that he got these
recommendations.
Senator EIennedt. Pardon?
635
Mr. Gray. There is a statement in there, as I remember, that he got
these recommendations for a counsel.
Senator Kennedy. And you didn't feel that should be pursued, just
in protecting the President ?
Mr. Gray. No , I did not.
Senator Kennedy. Just a few more questions, Mr. Gray.
One small point, McCord was the chief person hiring and firing
the CREEP guards and I would have thought all the guards would
have been interviewed
INIr. Gray. I don't know whether we interviewed all of the Com-
mittee to Ee^-Elect the President guards or not. Senator Kennedy.
Senator Kennedy. I notice that it does not include the name of one
of the guards, and I can't tell whether that list is wrong or whether
he has not been interviewed. This is the fellow's name. [The witness
was shown a piece of paper.]
]\Ir. Gray. We would have to check.
Senator Kennedy. If you could give us that information during the
course of the hearing — he was interviewed ?
Mr. Gray. Yes, he was interviewed on the 25th day of Juh'.
Senator Kennedy. His name was not on this list.
In another area, Mr. Gray, have you heard the phrase "out of chan-
nels" ever used in relation to activities going on outside the usual lines
of authority, or to action without the usual recordkeeping, or t« records
kept separate from the normal files ?
Mr. Gray. No, sir.
Senator Kennedy. You have not heard that phrase "out of
channels" ?
Mr. Gray. No, sir.
Senator Kennedy. Before you got in the FBI ?
Mr. Gray. No, sir. I did not.
Senator Kennedy. You are just unfamiliar with those words in any
respect ?
Mr. Gray. That is correct.
Senator Kennedy. Workings, either legitimate or illegitimate
agents, of the FBI ?
Mr. Gray. That is correct.
Senator Kennedy. I asked you one time — you may recall the ques-
tion— whether you talked to the Attorney General about the Time
magazine allegations, and you recall you said you had not talked to the
Attorney General at all about that. I mentioned that the Attorney
General had written to me saying he had personally contacted you
upon hearing about the allegations. Have you been able to straighten
that out? I asked the question and then we talked a bit about it.
Mr. Gray. That is right, I remember that.
Senator Kennedy. The day the story came out in Time magazine,
I wrote to the Attorney General about these allegations and he indi-
cated to me that immediately on seeing the allegations he had talked
to 3^ou. So we had that apparent contradiction and I was just wonder-
ing whether that had been resolved ?
Mr. Gray. I looked back into that and I think my testimony is
just the same as it was then. I felt, at the time, that I was contributing
to the decisionmaking process in connection with the press release.
I felt, in talking to Jack Hushen, he was working directly as a prin-
636
oipal staff man to the Attorney General and I said to you that was
the onlv way I could account for it because I had not talked personally
to the Attorney General about it. I think that is the only way that
T can account for it.
Senator Kexxedy. But vou did not talk to him personally ?
Mr. Gkay. I did not talk to him personally on that at all until
after that morning that I testified here.
Senator Kexxedy. And then you talked to him after that ?
Mr. Gray. That is right. 12 : 50 p.m., as I remember. It was two some-
tliing, shortly after 2 o'clock.
Senator Ivexnedy. And he asked you about those allegations then?
]Mr. Gray. No ; he didn't ask me about those allegations. I briefed
him on the testimony of the morning, that is all, but he didn't ask
me about any specific allegations.
Senator Kexxedy. You called him just casually about
^Ir. Gray. Generally I do call him or generally go up to see him.
lil:e that morning I went up to see him early in the morning to tell
him what had transpired on the preceding day, the 28th.
Senator Kennedy. He was aware that you were giving information
to this committee fairly routinely if you had been in contact with
liim every morning?
Mr. Gray. I don't know that he knew I was making inserts. I told
him a lot of questions were being asked.
Senator Kennedy. He knew you made this offer of materials to
members of the committee ?
Mr. Gr-a^y. I don't know what materials you are referring to.
Senator Kennedy. The Watergate files.
]Mr. Gr^\y. The Watergate files in toto ?
Senator Kennedy. Yes.
^Ir. Gray. He knew that because it was well publicized right here.
I made tlie statement that morning.
Senator Kennedy. So you must have thought you had his a]Dproval ?
Mr. Gray'. This was on March 1 I talked to him, after February
28. 1 didn't talk to him before then.
Senator Kennedy. Did you make the offer of the files available to
members of the committee witliout his approval ?
Mr. Gr.vy. That is my testimony yesterday, and that is my testimony
today. I described how that came to pass. I never put tl'ie question.
Senator Kennedy, right to him saying, "Mr. Attorney General, I am
going to do this, do I have your approval ?"
Senator Kennedy. There has been the allegation of a blacklist of
people to be shunned by FBI agents, and you wrote in your January
10, memoranda "I know of no such list or of the perpetuation of it.''
In the 2 months since then, have you found what this is about, the FBI
blacklist ?
Mr. Gray. No. I have asked questions on that and I have been told,
I think, it is a special correspondence list or something like that and
I liave also been told that there were people vviio didn't report favor-
ably concerning the Bureau. But I have never had produced to me
Senator Kennedy. I am sorry. I didn't understand.
Mr. Gray. I have been told there were people who were not favorable
to the Bureau.
Senator Kennedy. Is that on the list ?
637
Mr. GrxVt. But I hnve never seen the list and I have asked, "Is there
a list of such people f I have not gotten a list of such people. As far as
I am concerned in the conduct of my operations in the FBI, I don't
have that kind of an attitude at all. I don't know whether the attitude
existed before lo the extent that a list was compiled. I have not seen
such a list.
Senator Kenxedt. Is there such a thing as a no-contact group or
no-contact people in the FBI ?
Mr. Gray. No, I think once again that there were probably not lists.
I know, in going throughout tlie various held divisions, I gathered the
impression from talking with some of the key men in the field divisions,
that this particular individual was not favorable toward the FBI ancl
we deal with him at arm's length but I have never seen or heard any-
body say this is somebody we don't even talk to. I don't know what Mr.
Hoover's personal pleasures in this matter were in regard to people he
would or would not see.
Senator Kennedy. You testified that when you came to the FBI
on May 3, "the first thing I said was I will not permit any wiretaps
that are not in accordance with the law."
]\Ir. Gray. That is correct.
Senator Kennedy. Why did you say that ?
Mr. Gray. I have said it consistently because some of these allega-
tions have floated around.
Senator Kennedy. Did 3'ou have any specific information ?
Mr. Gr^vy. No ; I did not. Senator.
Senator Kennedy. What were the allegations which were floatins:
around ?
Mr. Gray. Well, you hear it, rumor all the time, all kinds of people
are wiretapping all kinds of people, and I wanted to make absolutely
certain that we are not going to participate in any kind of illegal
activity, period, and that is what I said.
Senator Kennedy. Did you think it was necessary to say that?
]Mr. Gray. No; I didn't think it was necessary, but I think it was
]3robably good that I put myself on the record with regard to it so that
there would not be any misunderstanding about it. It was one of those
things that could possibly develop, and I am not, just going to be a
party to it.
Senator Kennedy. Did you ever investigate to see whether it was
being done, or ask to track it down ?
;Mr. Gray. No, sir.
Senator Kennedy. You had heard rumors or allegations about it,
so you made the statement, but you did not think you had enough in-
formation to even look into it at all i
]Mr. Gray. No, sir.
Senator Kennedy. Why not ?
]Mr. Gray. Because I didn't.
Senator Kennedy. That is all.
The Chairman. Senator Mathias.
Senator Mathias. Thank you, Mr. Chairman.
Mr. Gray, there has been a certain preoccupation in the last few
days with the episode of the Watergate and related incidents and the
conduct of affairs in relation to that. While that is an important sul)-
ject, which has touched some of our most fundamental national insti-
91-331 — 73 41
638
tiitions to the extent it is even getting a little damp up here on Capitol
Hill, I think we also have to recognize that there are other consider-
ations which affect yonr confirmation consideration, such as the re-
vieAv of your directing of the FBI since you were appointed as the
Actmg Director and some exploration into the way you would func-
tion after confirmation as Director of the FBI. So' I would like to
turn to some of the broader areas of responsibility of the Federal
Burreau of Investigation.
I am wondering if you could review for the committee, and I will
ask you some specific questions, but in order to put those questions in
context, 1 will ask if you could review for the committee the statutory
authority for domestic surveillance on the part of the FBI?
I recognize, of course, that Congress has enacted statutes which give
the FBI investigative jurisdiction in matters of espionage, subversive
activities, and domestic violence.
There is not, however. I believe, specific statutory provision for de-
termining the scope and the rationale for domestic intelligence and
domestic surveillance.
I would add that this is probably the shortcoming of the Congress
and not the shortcoming of the Bureau or of the Justice Department,
but in the course of your answers I would hope you could define for
the committee the guidelines and limits that you found, that you have
set, and that you think proper in defining the activities of the FBI
with respect to domestic intelligence.
In other words, at whut point, in your judgment, do the statutes
of the law apply to citizens becoming jeopardized because of the
activities of the FBI ? It is my understanding of the FBI's activities
in the domestic surveillance field originally grew out of the emergency
which existed at the time of World War II, and that President
Franklin Roosevelt issued Executive orders which were the basis for
that surveillance and which were reinstated at the time of the Korean
emergency in 1950.
In 1972. Charles Brennan, who was head of the Domestic Intelli-
gence Division, told the Scranton committee that authority for its
activities went back to President Roosevelt's 1939 order to investigate
subversive activities and it was within the framework of this Executive
order that the FBI over the years has been attempting to fulfill its
responsibilities.
In 1971, Attorney General Mitchell said that there was a need for
public understanding, and I quote :
Of the standard that was used and why it was used in domestic surveillance
so that the American people would not feel that they were being disturbed by
government activities.
I do not think there has ever been such a clarification and I cannot
think of a better time to begin such a clarification. I am hopeful that
you will be able to assist the committee in reaching such a clarification.
Mr. Gray. Well, Senator Mathias, one of the early studies that we
made was devoted to the historical background, as I remember it. We
go back to 1936 when some of these directives came from the Presi-
dent, and you carry it up on the Executive order side, and you find
certain things and you go along there.
Then you come over to the statutory side and you find various
statutes that have been enacted by the Congress of the United States,
639
What I am trying to do, and what we are trying to do in the FBT^
as the result of this study, is to tie our responsibility in this field very,
very closely to the statutes of the United States and stick as closely as
we can to them.
I think I i^reviously testified that I require in the memorandum a
justification for the conduct of this type of investigation. You could
almost say specifically these investigations are now directed toward
violations of specific statutes of the United States, without leaning
heavily on the Executive order type of authority.
Generally speakiiig, those were the investigations in the area of
some of those that you have mentioned. Espionage is a completely dif-
ferent area, but some people who are American citizens do engage
in that.
But more importantly. I think, the area of political participation
or political dissent or political actiA'ities of one kind or another, that
do not advocate the overthrow of the United States by force or vio-
lence, is not within the purview of the Federal Bureau of Investiga-
tion.
It is really a question of how you make that judgment on the basis
of the information you have available at the time and before you au-
thorize an investigation. That in general, and almost in specific, is the
way that we have been doing it. I think basically the only tiling that
was different before was perhaps greater reliance on the Executive-
order side of the ledger than I am placing on it now.
I am trying to rely more heavily on the statute side. This is not tO'
say there won't be situations in which Ave will have reliance on the
Executive order side. But I can say to the cormnittee and the American
people that each and every case is being looked at very, very carefully
before a decision is made to iuA-estigate.
Senator ^Mathtas. Can you tell us specifically what statutory au-
thority is there for domestic surveillance of U.S. citizens?
Mi\ Gray. Specifically, sedition, conspiracy, the advocacy of over-
throw of the Government by force and violence. I don't have my statu-
tory authorities with me. t have the book with me that enumerates-
those statutes we are relying on.
Senator Mathtas. "Would you make that available to the committee ?
Mr. Gray. I can enumerate these statutes, yes, sir.
Senator ]Mathtas. Can you also enumerate the Executive order about
domestic surveillance ?
Mr. Gray. Yes. I can do that.
Senator Mathtas. Are those basically Executive orders which go
back to the Franklin Eoosevelt Executive orders and the proclamation
of emeroencv at that time ?
]^Ir. Gray. Yes. thev definitely develop and follow on from thait..
Those areas have been drawn, in bringing it up to the current time
in current Executive orders.
Senator Mathtas. What aboTit statutory aTTthority for the surveil-
lance of foreign aoeuts and aliens and the activities of foreign agents
in the United States? ^ , . . ^.
Mr. Gray. There we would stay pretty close to the statute. Ot course,
we have some Executive orders "from the President that T would say-
are clearlv pertinent in that area. We talk again of two sides. _ _
Senator :\rATHTAS. Can vou supplv the committee with the citations
of the statutes and the statutes wJiich you rely on in that area?
640
]Mr. Gray. Yes, sir ; I will.
Senator Mathias. In each case the statutes upon which the Execu-
tive orders are based.
Mr. Gray. Yes, sir ; I am not sure that all the Executive orders were
based on statute, but we will supply that.
Senator Matiiias. If you could indicate which are and which are
not it Avould be helpful.
[Mr. Gra}' subsequently submitted the following document for the
record:]
Mr. Gray. At the request of Senator Mathias there follows for the record a
listing of citations of Federal Statutes and Executive Orders on which the
FBI's jurisdiction to conduct national security investigations is based.
Tlie following are citations of Federal statutes upon which foreign intelli-
genee-t.vye national secm-ity investigations are based :
Title 18, U.S.C. 792-798 (Espionage).
Title 42 U.S.C. 2274-2278 (Atomic Energy Act).
Title IS U.S.C. 951-953 (Agents of Foreign Governments and Related
Sections).
Title 22 U.S.C. 611-621 (Foreign Agents— Propaganda).
Title 50 U.S.C. S51-S.56 (Persons Trained in Foreign Espionage),
Title 8 U.S.C. 1481-1486 (Lo.ss of Nationality).
The following are citations of Federal Statutes upon which domestic intelli-
gence-tvpe national security investigations are based :
Title IS U.S.C. 112, 970, 1116-1117, 1201 (Act for the Protection of Foreign
Officials and Official Gnests of the United States).
Title IS U.S.C. 231-23.3 (Civil Disorders).
Title IS U.S.C. 245 (Deprivation of Civil Rights).
Title 18 U.S.C. 844-845 (Explosives and Incendiary Devices) .
Title IS U.S.C. 953 (Private Correspondence with the Enemy — Logan Act).
Title IS U.S.C. 954-967 (Foreign Relations— Neutrality Matters).
Title 18 U.S.C. 2101-2102 (Riots).
Title 18 U.S.C. 2151-2156 (Sabotage).
Title 18 U.S.C. 2381-2382 (Treason and IMisprision of Treason).
Title IS U.S.C. 2383-2385 (Overthrow or Destruction of Government).
Title 18 U.S.C. 2386 (Registration of Subversive Organization).
Title IS U.S.C. 2387-2388 (Activity Aftecting Armed Forces — Sedition).
Title 18 U.S.C. 2389-2390 (Recruiting or Enlisting to Service Against
U.S.).
Title 22 U.S.C. 401 and 1934 (Neutrality Matters— including Illegal Ex-
portation of War Materials) .
Title 28 U.S.C. 533 (Authority of Attorney General to Order Investigation
bv the FBI).
Title 42 T'.S.C. 2011-2181 (Atomic Energy Act).
Title 50 U.S.C. 781-798 (Title I, Internal Security Act of 1950— as
Amended).
In addition to the Statutes cited above, the FBI has investigative responsi-
bilities relating to the national security growing out of Executive Order 10450.
Executive Order 10450 was issued April 27. 1953. It revoked and replaced Exec-
utive Order 9835. issued March 21. 1947. which was based on the Hatch Act of
August 2, 1939, and Title 5 U.S.C. 301 (Authority to Prescribe Regulations).
Executive Order 10450 was based on provisions of Title I, Internal Security
Act of 1950.
Executive Order 10450 was amended by Executive Order 1160.i, issued July 2.
1971. However. Executive Order 11(>05, which requires functioning of a SuV)-
versive Activities Control Board, must be implemented by Congressional action.
Thus Executive Order 10450 is considered to still be in effect.
Senator INIatiiias. In the period of your conduct with the Bureau,
have yon ever felt the absence of guidelines : do you feel you have suffi-
cient guidance in handling these problems?
jNIr. Gray. I think, on the basis of my experience in the Federal
Bureau of Investigation, that we do have. We know how to operate
within them. Tliere is an area, perhaps on the Executive order part of
641
tlie ledoer in wliicli im]:)rovemonts could be made. "We have not final-
ized any recommendations in that area, not made any recommenda-
tions at all.
Senator IMatiiias. Do the dossiers on Members of Congress still
exist?
Mr. Grat. Senator Mathias, I don't speak in terms of dossiers.
Senator ]Matiiias. Files? Records?
]Mr. Gray. Yes, I do speak in terms of files, sir. I think yon may have
reference to the summary memorandums that were prepared as the end
product of the congressional relations program.
Senator Matiiias. Do those records still exist?
]Mr. Gray. The summary memorandums do still exist ; yes, sir.
Senator jMatiiias. And do they cover all ]Members of Congress?
ISIr. Gray. I supplied an insert for the record on that, and my recol-
lection is that that program started early, and we put in the record also
a long letter to Senator Ervin. Senator Ervin wrote me a letter with
some very probing questions in this area, and Ave supplied him a very
detailed reply, and that is in the record.
My recollection is that it covers all ISIembers of Congress from 1950,
1954 on. ^ ^ "^
Senator Mathias. Is there any authority cited within the Bureau — •
granted that 1954 is well before your time — any authority recognized
within the Bureau as the basis for keeping such files ?
Mr. Gray. I don't recall that there was any authority as such cited,
Senator Mathias. It was a program that was developed, as explained
to me when we looked into it, to assist those men at the executive leA^el
who were rendering services to IMembers of Congress, to know a little
something about the IMembers of Congress before they contacted them.
I made a determination to terminate the program.
Senator Mathias. Is the FBI familiar with the numerous publica-
tions that Congress itself makes available to the public for biograph-
ical information about IMembers ?
Mr. Gr^vy. This is one of the reasons that I stopped the program.
I felt that there was no need for it, and that the information could be
readily obtained elsewhere.
Tiie' information was obtained from public source material anvhow,
plus information that may have been contained in our FBI files at
the field office level or at the lieadquarters level.
Senator Mathias. Is there any reason why these files should not be
destroved ?
Mr. "Gray. Well, Senator Hart and I engaged in a discussion on that.
I did look into the matter of the destruction of these files, but once
again it l^ecomes a question of reading them and of who is going t:o
certify that I have destroyed them or the Federal Bureau of Investi-
gation has destroyed them. The question also arises, do we have to get
permission from the Archives to destroy them? The answer is yes. The
next question is whether the Archives have to read them, and that is
six of one and half a dozen of the other, and to say the least it is
muddled.
I think I said to Senator Hart that if a law were passed to empower
the Acting Director to destroy those, they would be destroyed. The
materials from which they were compiled were destroyed as soon as
the summary itself was prepared.
642
Senator Mathias. You referred to Senator Ervin's letter on this
■subject. In the past, he has suggested the criteria should be whether
congressional files of this sort are useful and ^Yhether they are neces-
sary. I would conclude from your expressed attitude toward them
that they are neither useful nor necessary ?
Mr. Gray. I think it is helpful for our people to know something
aJ^out a U.S. Senator or a Member of the House of Representatives, to
try to work with him and render congressional services to him, but I
think we can obtain that information elsewhere.
Senator Mathias. And you would not feel that there was any need
for continuing this ?
Mr. Gray. I dont ; no, sir.
Senator Mathias. Now, when you were before the committee on the
1st of ^larch, I posed several written questions to which you kindly
responded, one of which concerned the National Criminal Informa-
tion Center and the fingerprint operation. You stated it would be tech-
nically possible for the National Criminal Information Center to com-
ply with a congressional limitation on the dissemination of its raw
arrest data to noncriminal Justice agencies.
Just to be clear on that answer, does that include a limitation on the
dissemination of the information available from the fingerprint divi-
sion ?
Mr. Gray. Would you tell me, Senator Mathias, where you are read-
ing from on that page ?
Senator Matphas. Well, I don't have the page number on my mem-
orandum, but it relates
Mr. Gray. I don't really understand the question. That is the prob-
lem. I was trying to put it in the context of the material.
Senator Mathias. You say that the information on raw arrest data
does not have to be disseminated except to law enforcement agencies ?
]Mr. Gray. That is right.
Senator Mathias. You can limit dissemination so that only law en-
forcement agencies get raw arrest data. How about fingeiprint infor-
mation ? Can that be similarly assimilated ?
!Mr. Gray. As distinguished from the computer system division ?
Senator Mathias. Yes.
Mr. Gray. I think. Senator Mathias, that that material is limited
to responding to the law enforcement agency except in those cases
where there have been State statutes passed for licensing or employ-
ment. The Attorney General has approved providing such informa-
tion. My understanding is, talking on the manual side 'now, that the
information is sent to the State agency which is making the request for
the employment. State employment and licensing purposes.
Senator Mathias. But to your knowledge it goes to no one other
than public bodies?
Mr. Gray. That is correct, sir. Unless — and I think Senator Byrd
raised this question before — unless one of the police agencies or State
agencies would make that available to somebody else. We will then
inform them we would take some action, pose some sanctions on them,
put them out of our operations for maybe 90 days, not receiving our
services. It is that type of sanction we propose.
Senator Mathias. Senator Ervin proposed a bill which did pass
the Senate, although it did not survive a conference with the House,
643
whicli did impose a limitation on dissemination on raw arrest data,
similar to the one about which I raised the question with you. Would
you have any objection or do you know of any objection in the
Department ?
Mr. Gray. I try not to comment on Department legislation, leaving
that to the Department, but I think the Department does have an
objection. I don't remember exactly Senator Ervin's proposal, but I
think there were a couple, but I am not sure that I remember exactly
which ones they were.
One had to do with — we had to have full and complete arrest data
which indicated by a plea of guilty or nolo contendere or some final
action before we distributed and disseminated any record.
Senator Mathias. But you will still stand on your answer to me
that it is technically possible to limit that data?
Mr. Gray. Yes, sir.
[Mr. Gray subsequently submitted the following document for the
record :]
Mr. Gray. I am speaking solely as this question relates to the computerized
NCIC file. As I advised in response to your written questions, should the Con-
gress prohibit dissemination of "raw arrest data to noncriminal justice agencies"
it would be possible, technically, to identify the "raw arrest data" in the NCIC
on the basis of definition. Responsibilities for restricting dissemination would rest
with the control agency in each State and the Federal control terminal.
With respect to our manual fingerprint operation, this is an entirely different
matter. Senator Erviu's proposal which you referred to would have prohibited the
FBI from disseminating an arrest record for employment and licensing pnri>oses
unless such record resulted in a plea of guilty, nolo contendere or a conviction.
We currently have in file more than 20 million individual fingerprint identification
arrest records against which we are processing approximately 25 thousand finger-
print cards daily. As I have previously testified, arrest and disposition data are
submitted voluntarily to the FBI and the disposition data submitted is oftentimes
brief and meager. The FBI must work with the present contents of multiple arrest
fingerprint records on file. We simply cannot expect the young clerks who man our
fingerprint assembly-line operations, or even professional lawyers to make judicial
determination as to whether disposition data reading "bail forfeited," "ordered
confined to mental institution for indefinite period," or "report to probation offi-
cer— 6 months" constitute pleas of guilty, nolo contendere or convictions. We
carefully studied Senator Ervin's proposal which related to the non-Federal appli-
cant fingerprint program (processing of applicant fingerprint cards for local
authorities for licensing and employment purposes) and concluded that it would
not be possible to provide this service within the restrictions imposed.
Senator Mathis. Thank you, Mr. Chairman.
The Chairman. Senator Burdick.
Senator Buedick. Mr. Chairman.
Mr. Gray, about a week ago, on March 8 to be exact, I asked you
about two things. One was the delivery by you to Mr. Dean of the
Dita Beard memorandum which took place about a year ago, and I
asked you about the delivery of this so-called raw material to Mr.
Dean recently. In answer to the question, you gave this answer :
Senator Burdick. As I recall, your testimony was that the Dita Beard
memorandum was delivered by someone to Mr. Dean, attorney for the President?
Mr. Gray. Yes, sir ; Mr. Dean called me and asked me if this could be made
available to him. And I made it available to him.
Senator Burdick. Then, thereafter, that memorandum found its way into the
hands of the ITT Corp. ?
Mr. Gray. That I don't know as a fact. I still don't know it as a fact. On
page 804 of the confirmation hearings, Mr. Abell testified the ITT had that
memorandum.
644
Senator Buedick. I would like to call your attention to the record
•which was made a year ago on that point. I refer to pages 803, 804
and 805 of the Kleindienst hearings.
Mr. Tunney asked the following question :
Mr. Geneen, when did you hire Dr. Walter McCrone and Mrs. Pearl Tytell
to do an analysis of the Anderson-Beard memorandum V
Mr. Geneen. Senator, that was turned over to the legal department. I didn't
have anything to do with it. If you want an answer, it would be better to ask
counsel.
Senator Tunnet. Can I ask counsel ?
Mr. Geneen. Sure.
Senator Tunney. When did you hire those two individuals?
Mr. Gilbert. Are you talking to me, Mr. Tunney ?
Senator Tunney. Yes.
Mr. Gilbert. I don't know when the outside experts were employed. I had
nothing to do with it myself.
Senator Tunney. Does anyone know who had something to do with it?
Mr. Gilbert. Yes ; yes. The law firm of Skadden, Arps certainly talked to
them. I have no knowledge at all as to when they were hired.
Senator Tunney. Were they given any instructions?
Mr. Gilbert. In what respect. Senator?
Senator Tunnky. Well, instructions as to the analysis, of course.
Mr. Gilbert. I am sure they v.ere given instructions as to what they were
examining.
Senator Tunney. Well, who instructed them?
Mr. AiBEL. Senator, this was basically a piece of work that was under the super-
vision of my organization by a lawyer named DeForest Billyou.
Senator Tunney. What did Mr. Billyou — is that how you pronounce it?
Mr. Aibel. Yes, sir.
IVIr. Gilbert. That's right.
Senator Tunney. What did Mr. Billyou tell them to do?
Mr. Aibel. Senator, I can only respond generally that he asked them, first,
Mr. and IMrs. Tytell and then Dr. McCrone, to examine into the question as to
whether the document had been typed in our office and to determine if they could*
tell when it had been typed.
Senator Tunney. When was that?
Mr. Aibel. I am sorry, I can only estimate that it was approximately 3 weeks,
21/2 or 3 weeks ago. I can supply the precise date later.
Senator Tunney'. And do you know for how long a period of time they had the
document available to them?
Mr. Aibel. Senator, I do not.
Senator Tunney. Could you get that information for us, too?
Mr. Aibel. Yes ; I can.
The Chairman. What is this document?
Senator Tunney. This is the document, the alleged Beard memorandum that
was presented to the committee by Mr. Anderson, which Mr. IVIcCrone and INIrs.
Tytell said was typed around January 1972, and which the FBI indicates, as far
as they can tell, was typed around June 1971.
The Chairman. Well, now, I want the record to .show this : I gave those docu-
ments to Dave Bowers of the FBI. That was the third time they were sent
down there. The first time they were sent on the 10th of :Ma.rch : the second time
around the 16th of March. They were transmitted those two times through the
Justice Department, which is the normal pi-ocedure to get to the FBI. There was
some question about the Justice Department people handling the documents sa
I sent Mr. Bowers of the FBI. I was again approached — I don't remember by
whom — that ITT had employed two scientists to look at tliose documents. My
instructions were that that was a decision the FBI should make, but under no
conditions v,-ere they to leave the control of the FBI.
Now, I further stated that, after all, these we.re stolen documents and the
property of this company and they had, I thought that they had, a right under
proper supervision to see those documents. In any court of law in this country
they would certainly have had that iright, and I thought it was nothing but fair
that they do it, but yet I left it, it was the decision that tlie Bureau had to make.
Senator Tunney. Thank you, Mr. Chairman. I was just getting to a point that
645
I was trying to figure out when the analysis was done, over what period of
time
The Chairman. Now, loolc, I think the record onglit to show liere also that
we have not received a report from ITT ; there have been references in the press,
but we have received no report about their examination and whether they exam-
ined the documenis or not. I do not know.
:Mr. AiBEL. Mr. Chairman, that report was completed in New York; that is, the
physical process of reproducing it, last night. It arrived in Washington after
these hearings began, so, therefore, I could not bring them wtih me. They will
be available shortly.
Senator Tunney. They will be available shortly?
Mr. AiBEL. Yes, Senator.
The Chairman. I am going to take what the FBI said about it.
Senator Tunney. Mr. Aibel. it is reported, in the New York Times, that
Mrs. Tytell apparently testified for Louis Wolfson, financier, and that she re-
ceived $78,000 for her services. How much did she receive for her services in this
case?
Mr. Aibel. I don't think she has gotten paid anything, and I don't know what
the retainer arrangement with her is.
Senator Tunney. How much did Dr. Walter McCrone get?
Mr. Aibel. I will have to give the same answer.
Senator Tunney. Would you make that information available to the committee?
Mr. Aibel. Certainly, if it is available.
Senator Tunney. Are you going to be making available to the committee their
analysis and report?
]Mr. Aibel. Excuse me. Senator
Senator Tunney. Are you going to make the report available to the committee?
Are you or aren't you?
Mr. Aibel. Yes.
Senator Tunney Why can't you make available to us the amount you paid
them ?
Senator Cook. I\Iaybe they haven't gotten a bill yet.
Mr. Aibel. That is exactly the point I don't know whether we have that.
Senator Bltrdick. Then at page 857 of the Kleindienst hearing
record :
Senator Hart. Finally, for the Chair, may I ask for the report which has been
described and discussed today, the document analysis and examination of the
Beard memorandum prepared by two experts for ITT?
Mr. Gilbert. Yes, sir, do you w^ant that now ?
Senator Hakt. You can leave it with the staff, yes. It will be made a part of
the record.
Mr. Gilbert. Yes, sir
Senator Hart. It being 4 o'clock
Mr. Gilbert. Sir, there are two— one is by the Tytells and the other is by
Dr. MeCroue — reports.
Senator Hart. These two documents are the reports that we have talked
about, is that right?
Mr. Gilbert. The report of the experts?
Senator Hart. Yes.
:sh: Gilbert. There are two reports, one from Mr. and Mrs. Tytell s farm, the
other from Dr. McCrone. We have given them both to the gentleman.
Senator Burdick. Now, Mr. Gray, is there any question that ITT
had that memorandum?
:\Ir. Gray. I don't think there was, and I don't think there is now, but
I think it was Senator Byrd who reminded me about that testimony.
Senator Burdick. "Well, I asked }^ou last week about that. Then I
asked you this question last week. I said :
If in fact the Dita Beard memorandum did find its way in the hands of the
ITT after being examined by the FBI, and if in fact the raw interview of Mr.
Segretti did find its way into his hands, would not those facts be rather dis-
turbing to you?
Mr. Gray. They would.
646
I have characterized the latter as a grievous error. I think I said serious or
most grievous breach of trust * * *
Now, given the ITT memorandum, it would be a most serious breach
of trust, would it not ?
Mr. Gray. I believe I qualified it, and even in that testimony you are
following, I characterized that as a breach of trust, but I also said
what this conunittee really was interested in was the authenticity of
that document. I went on to say that but I don't remember my exact
testimony.
Senator Bukdick. I will give it to you exactly :
Then we come dovpn to this year, we find that a raw interview of Mr. Segretti
was also delivered to Mr. Dean, the President's attorney?
Mr. Geay. It was among those, Senator Burdick, that I previously testified I
did deliver to Mr. Dean in his capacity, his official capacity, as counsel to the
President in conducting the investigation.
Senator Bukdick. That is the same Mr. Dean?
Mr. Gkay. Yes, sir ; that is the same Mr. Dean.
Senator Bubdick. If in fact the Dita Beard memorandum did find its vs^ay into
the hands of the ITT after being examined by the FBI, and in fact the raw in-
terview of Mr. Segretti did find its way into his hands, would not those facts
be rather disturbing to you?
Mr. Gray. They would.
I have characterized the latter as a grievous error. I think I said serious or
most grievous breach of trust to the Pre.sident, who has entrusted this man with
the responsibility of conducting an investigation for the President. But I
have evidence in the story itself that, at least, it didn't occur as the story related.
That is obvious on the face. Senator Burdick. It just didn't occur.
But to answer your question, it would be a breach of trust, there would be
no question about it.
Mr. Gray. With regard to the authenticit}^, I was talking about the
Dita Beard memorandum. That testimony is questionable.
Senator Burdick. I will give you the question again.
Mr Gray. Xo, I understand. Senator.
With regard to the Dita Beard memorandum, I think I went on to
say about that matter that what the committee was interested in was
its authenticity. But there is no question about the testimony you are
reading there.
Senator Burdick. "V^Hiat do you think now about the breach of trust
on the part of Mr. Dean ?
Mr. Gray. If this occurred ; yes, sir.
Senator Burdick. Did it not occur? I read you the record. ITT
examined the Dita Beard memorandum.
Mr. Gray. Yes, sir ; and that is why I am saying, Senator Burdick,
in connection with that Dita Beard memorandum, I think niy answer
went on to say that this committee was really concerned with the au-
thenticity of that document.
Senator Burdick. You did not say it in repsonse to my question.
You may have said it to some other question.
Mr. Gray. Yes, sir ; I think I did.
Senator Burdick. My point is that I think this is a breach of trust,
and doesn't it not kind of rebut the presumption of Dean's regularity ?
Mr. Gray. I think if you assume it is a fact, but I do not think we
can assume it is a fact.
Senator Burdick. You mean you cannot assume it is a fact that the
Dita Beard document got in the hands of ITT ? Is that not a fact ?
647
INIr. Gray. That is a fact, according to the testimony, yes, sir.
Senator Burdick. "Well, the Kleinclienst hearing record shows that
the Dita Beard document was examined ?
Mr. Gray. Yes, sir.
Senator Burdick. Well, was there a breach of faith under your
terms ?
Mr. Gray. That is how I characterize it, yes, sir.
Senator Burdick. Now, later you gave another document to the same
man who allegedly gave that document to Mr. Segretti, and you said
you did not inquire any further about it because he had — I think the
words were — the presumption of regularity. Well, having had one-
incident a year ago where there was a breach of trust of some kind,
would that not have put you on notice not to give this man material
again ?
]\Ir. Gray. It did not. Senator Burdick. That is all I can say to you.
I gave the material to Mr. Dean as counsel to the President in his
official capacity of conducting an inquiry for the President.
_ Senator Burdick. But after having this experience a year ago, you
did not want to look into the Segretti matter on a presumption of
regularity ?
Mr. Gray. The only thing I can say, I was reminded by page 804y
and I did not think about it and it did not occur to me.
Senator Burdick. Well, one of the questions that several of my
colleagues have asked me is why we did not dig deeper into the
Segretti affair. Your answer was that Mr. Dean came under a pre-
sumption of regularity. I am pointing out here
Mr. Gray. I am saying to you that I did not think about that. It
did not come to my mind and I did not know about this testimony
until it Avas read to me here. I just did not think back there. That is
the way my mind worked.
Senator Burdick. Thank you.
Senator Ervin. Senator Gurney.
Senator Gurney. Just one or two clarifying questions.
On the point of the Dita Beard memoranclum that you have just been
discussing with Senator Burdick, am I right in my recollection that
there is not any proof before this committee of how the memorandum
got from wherever it was to ITT? Is that not the fact?
]Mr. Gray. Yes. sir ; I do not know.
Senator Gurxey. We do not know that ISIr. Dean gave it to the
ITT. It is certainly true that it should not have gotten there, but
this committee has no knowledge that Mr. Dean gave it to ITT, and
I think that is a very salient point.
We had a lot of discussion this morning about the Dean-Liddy
affair; that is, their relationship, the extent of it, and their involve-
ment with each other. There has been a great deal of news from time
to time in the press about this also, as though this were a key point,
the key point being that if there were any relationship here betw^eeii
Liddy and Dean, then you, Mr. Gray, should not have furnished Mr.
Dean with FBI files because they might have ended up in JNIr. Liddy *s
hands or information might have gotten to Mr. Liddy. But after
listening to this testimony, I guess I spent an hour, three quarters of
an hour on it this morning, the fact is that you had no knowledge of
any such relationship at all at the time you had your transactions with
Dean in July. Is that not a fact 2
648
^Ir. Gr^\t. I believe tliat to be a fact, subject only to the actual
reading of that note, which I believe I read on July 24, summarizing
the interview. This did not mention anything about how Mr. Liddy
was hired at the committee. The FD-302, the report of the interview
did, in connection with his hiring there, indicate that he was recom-
mended by JNIr. Dean and JNIr. Krogh. But at that time I had that kind
of knowledge and no more, as I testified this morning. I cannot make
a jump just because the man is recommended over there for a position
that there is something wrong with that relationship.
Senator Gurxet. The other fact that occurred to me was that dur-
ing the very extensive investigation by the FBI of "White House
pei^orjiel and Committee To Ke-elect the President personnel, as I
understand it, nothing in these investigations or interviews has shown
any relationship between Dean and Liddy other than this recommen-
dation to the Committee To Re-elect; is that true?
Mr. Gray. That is correct. Senator Gurney. I testified to that this
morning. There is the sum total of our investigation. We have not seen
anything pointing to Mr. Dean.
Senator Gurney. Therefore, in these very extensive investigations,
there was nothing to alert you that Dean and Liddy had any clandes-
tine relationship ?
Mr. Gray. No, there still is not anything to me in the Watergate
investigation file.
Senator Gurney. There was a great deal of discussion this morning
also on the mechanics of handing these files to ]\Ir. Dean ; that is, how
they were turned over. This memorandum, the legal memorandum of
July 20, 1972, from Mr. Felt, was discussed at some length, and I
would like to take that up, if I may, and clarify for my own benefit.
Now, this memorandum Avas written at a request by you, Mr. Gray?
^Ir. Gray. Yes, I am pretty sure it was. My best recollection of it
was that I was talking with my acting Associate Director, Mr. Felt,
and I asked that he cause this kind of a memorandum to be prejDared
by the Office of Legal Counsel.
Senator Gurney. My understanding of the memorandum, is that it
generally sets forth FBI procedures for handling information about
a criminal investigation that has been requested by the White House.
The memorandum says that the normal procedure would be to turn
over the information first to the Attorney General and, as the memo-
randum says, leave the rest to him ; is that right ?
Mv. Gray. That is correct, sir. Then it goes further than that.
Senator Gurney. Well, I am going to get to that. But these were
establishing general procedures?
j\Ir. Gray. That is correct.
Senator Gurney. You in your mind were establishing what we used
to call a SOP in the Army, standard operating procedure; is that
correct ?
Mr. Gray. With regard to letterhead memorandums that we were
going to initiate without somebody giving us a prod to do so.
Senator Gurney. Now, I also see here in the memorandum that it
says something else very specifically. It says this on tlie first page. We
did not consider the matter of disseminating such information where
there is a specific Wliite House request. In this latter situation, we
assume the President is the top officer of the executive branch. He can
649
obtain from tliat brancli any information he wishes. As I understand
that, that means to me that if the President wants an FBI file for
some reason, or as in this case instructs his attorney to get some FBI
files so that he can conduct an investigation for the President, this
legal memorandum of your Department says to you that it is in order
for you to hand over those files ?
Mr. Gray. That is certainly the way I interpret it, and that cer-
tainly has been the practice in the past of the Federal Bureau of
Investigation.
Senator Gurxey. That is the way I interpret it, too, and, as I under-
stand it, that is what the memorandum itself says. As you pointed out,
in the past that is what ]Mr. J. Edgar Hoover did in these situations.
Mr. Gr^vy. Correct, sir.
Senator Gurney. ISTow we come down to these actual mechanics of
handling files which received so much attention this morning.
Mr. Dean asked for some and, as I understand it, you asked him to
come down to your office and pick them up. You had him do that be-
cause you wanted to be sure that these files were completely safe-
guarded, safeguarded to such an extent that they were not even in the
hand of a courier taken from your office to the White House. You
wanted to see that they were picked up personally by Mr. Dean so you
knew personally that the person the President had in charge to take
a look at these files actually had them in his own hands ?
Mr. Gr^vy. That is correct.
Senator Gurney. And you did this in order to safeguard the files ?
Mr. Gray. That is correct. That is what was going through my
mind, and that is why I did it.
Senator Gurney. Then there was the fact that nobody in the Fed-
eral Bureau of Investigation knew anything about it. What are you
supposed to do, send a bulletin to everybody in the FBI that you are
sending files to the President ?
Mr. Gray. No, I do not think that has been done before. I have no
knowledge that has been done before.
Senator Gurney. I would doubt that, too.
Mr. Gray. ISIay I point out. Senator Gurney, at this time some
time had elapsed since the investigation began. Distribution of these
files had been made to otliere, to the assistant U.S. attorneys, to the
Criminal Division within the Department, and certainly I felt that
when the President of the United States designates his own counsel
to conduct an inquiry and that counsel asked if I will make available
to him investigative reports and teletypes that I have available
Senator Gurney. Then the other point that I wanted to bring out
was that you kept an accurate record, as I understand it
Mr. Gray. That is correct.
Senator Gurney [continuing]. Of files given to Mr. Dean and what
was contained in the files.
Mr. Gray. That is correct.
Senator Gurney. And he signed for them ?
Mr. Gray. He did not sign for them. He received them from me and
when they came back I made certain every single one of them was
there on tlie inventory.
Senator Gurney. Well, here is one Senator that thinks you could
not have handled it more regularly than that.
650
Now, one other matter. That is this ITT thing. We spent a lot of
time on that this morning.
Senator Buedick. I have a question on that when you are through.
Senator Gurney. Do you want me to yield ?
Senator Burdick. Yes, I would, to keep continuity m the
questioning.
Senator Gurney said that there is no proof that the Beard memo-
randum went into the hands of the ITT from Mr. Dean, no evidence
or a witness of actual delivery. Let me ask you about the sequence. This
memorandum was given to the chairman of this committee by Mr. Jack
Anderson. The chairman gave the memorandum to the FBI. The FBI
gave it to you. You gave it to Mr. Dean.
Now, let us go back. Did you give it to the ITT yourself personally ?
JNIr. Gray. No, sir.
Senator Burdick. Did the Attorney General give it to the ITT ?
Mr. Gray. No, sir ; I do not know that he did.
Senator Burdick. I know that the chairman did not give it to ITT.
So Dean was the last stopping point before it got to ITT?
Mr. Gray. That I do not know, sir.
Senator Burdick. You gave it to Dean, that much you know ?
Mr. Gray. Yes, sir.
Senator Burdick. And from there we find it in the hands of the
ITT?
Mr. Gray. That apparently is testimony in the record, Senator
Burdick.
Senator Burdick. That is all.
Senator Gurney. Well, the point I was making, of course, is that
we have no evidence before the committee as to how the memorandum
got in the hands of ITT. I hope some day we will find out. I am very
serious about it, too.
But to get back to the ITT discussion we had this morning. This,
of course, is on the investigation that the committee has asked to be
done, following up the possible perjury that may have occurred before
this committee in the Kleindienst hearings. I would like to go over that
a little bit because there was some impression left, I think, that you,
Mr. Gray, may have been deeply involved with the ITT affair at the
time that you were in the Justice Department, and I wanted to clear
that up some for my own information.
Did you have anything to do with the ITT antitrust suit within the
Department of Justice ?
j\Ir. Gr^vy. No, sir. The first time I had anything to do with it was
when ]Mr. Kleindienst asked that his hearing be reopened and he be
permitted to come up here and testify. That is when I began learning
something about this whole matter.
Senator Gurney. You never worked with Mr. ISIcClaren on this
case?
Mr. Gray. No, sir.
Senator Gurney. Or. Mr. Kleindienst ?
Mr. Gray. No, sir.
Senator Gurney. You never worked with INIr. JNIitchell on this
case ?
Mr. Gray. No, sir.
Senator Gurney. Did vou ever work Avith anybody on ITT?
651
INIr. Gray. Xo, sir. I did not laiow anything about that case at all
until I started here with Mr. Kleindienst" in support of him, as I testi-
fied this morning.
Senator Guenet. My understanding is that the only involvement
you had with ITT was wliat occurred in this committee room in the
Kleindienst hearings when you were helping him as a member of the
Justice Department in preparing testimony and answermg questions
before this committee ; is that correct ?
INlr. Gray. That is correct, sir, preparing "issue and answers" papers,
and also there did come a time when I began to make the decisions on
the documentation to be provided to the committee. As I testified this
morning, I recall the first letter I signed on this was March the 17th
of that year.
Senator Gtjrney. Now, there was some question about a possible
conflict of interest in this present FBI investigation of possible per-
jury, because you are the Acting Director of the FBI and because of
your involvement in the Kleindienst hearings. I cannot see how there
possibly could be, but I am curious — you are not conducting this in-
vestigation personally within the FBI, are you ?
Mr. Gray. No, sir, the agents, once again, are doing the job they
have been trained to clo without any interference from me.
Senator Gurney. The facts that are developed go to the Justice
Department ?
]Mr. Gray. Yes. sir ; the Committee on the Judiciary referred the en-
tire testimony to the Criminal Division for analysis. They in turn are
directing us in our investigation, and I understand that the Attorney
General* of the United States and Assistant Attorney General have
disqualified themselves in this case.
Senator Gurxey. There was some question raised about whether the
evidence that is produced in this investigation ought to go to the
Justice Department. Who else could it go to? Is not the Criminal
Division of the Justice Department responsible for any prosecution
of this case if there is evidence of criminality that requires prosecu-
tion? , , .
:Mr. Gr.\y. Yes, sir. The committee referred the record there and the
Justice Department will have to do its work.
Senator Gurxey. There is not anybody else who could do it? The
sheriff of Nottingham could not do it ?
Mr. Gray. No, sir.
Senator Gurxey. That is to go to the Justice Department and the
Criminal Division and then be assessed and decided whether it will
be prosecuted ?
Mr. Gray. That is correct, Senator.
Senator Gurxey. One other point that was raised this morning, and
I am not sure whether there was any clarity on it or not. There was
some question whether during your tenure as Acting Director people
brought pressure on you. I want to ask the same question again, or
several questions in this area.
Has anybodv in the administration ever brought any pressure on
you to do anvthing or not to do anything during your tenure as Acting
Director of the FBI?
Mr. Gray. No, sir.
Senator Gurxey. That is all.
652
Senator Burdick. !Mr. Gray why did you give the Dita Beard
memorandum to jMr. Dean ?
Mr. Gray. IMr. Dean called me and asked me if I could make this
available to him.
Senator Burdick. Did he give you any reason why he wanted it ?
Mr. Gray. No, sir, he did not.
Senator Burdick. You just gave it to him when he asked you?
IMr. Gray. Yes, sir. The only thing I can add to that. Senator Bur-
dick, and I have said it quite a few times, that man is counsel to tlie
President of the United States and when that man calls or the assistant
to him calls there is a duty on the part of the Director of the FBI to
produce that sort of thing for them. I bear in mind my earlier dis-
cussion about files, but this M'as not a matter that involved an indi-
vidual or anything of that sort. It involved a question of authenticity,
as far as I could see.
Senator Burdick. Mr. Dean gave you no reason at all ?
Mr. Gray. No, sir. He asked me if I could make that Dita Beard
memorandum available to him for his inspection.
Senator Burdick. And, thereafter, we find it in the hands of the
ITT, out of your control ?
Mr. Gray. That is the testimony of record, Senator Burdick.
Senator Burdick. That is all.
Senator Ervix. Is it customary that FBI information, gathered
by the FBI, be transmitted to the Department of Justice so they can
determine whether it justifies a prosecution ?
Mr. Gray. Yes ; Senator Ervin, that is correct.
Senator Ervix. Does the FBI furnish it on] 3- to the Department of
Justice in that connection or does it also furnish it to the district
attorneys ?
Mr. Gray. Senator Ervin, quite a few cases in the field are referred
directly and we work directly with the U.S. attorneys. Very often in
those cases in the field the decision is made at the U.S. attorney's
level, or if he is in doubt he Avould request the Department for the
prosecution.
Senator Ervix. Is the information transmitted directly to tlie dis-
trict attorney by the FBI rather than through the instrumentality
of the Department of Justice ?
jMr. Gr^vy. I believe that it is, yes, sir. He is provided with copies of
the investigative reports which are placed right in his mailbox in the
field offices.
Senator Ervix. You have testified that information was furnislied
to the Department of Justice in respect to the "Watergate irivestiga-
tion, and also to Mr. Dean as counsel for the President. Do you know
whether any information was furnished b}^ the FBI to any otlier
official ?
Mr. Gray. Other than the assistant U.S. attorney and the I'.S. at-
torney level, and I think a copy of that summary memorandum of
July 21 went to the Deputy Attorney General and Assistant Attorney
General. Criminal Division.
Senator Ervix. The only "White House aide who liot anv Avas INIr.
Dean?
Mr. Gray. That is riglit. I made the delivery to him personally and
got the receipt and got it back from him.
653
Senator Ervin. Was jNIr. Dean the onl}^ person other tlian tlie FP>I
agents f)resent at the time that the FBI took statements from the
At^iite House aides ?
jMr. Gray. I think Mr. Dean was present, certainly, on all of tliose.
Perhaps when — I do not think Mr. Dean Avas present when jNIr. Wong
of the Secret Service was interviewed. I think my memory is correct
on that. I do not know whether Mr. Dean sat in on each of those
White House interviews or whether it was JMr. Dean or Mr. Fielding.
Senator Ervin. As I understand, you testified before that when the
FBI interviewed the employees of the Committee to Ee-Elect the
President, that the committee insisted that their counsel be present?
Mr. Gray. Yes, sir, to the best of mj- recollection, Senator Ervin.
That was a discussion that those attorneys had with the assistant U.S.
attorneys and this did, in fact, occur.
Senator Ervix. Do you know what particular individuals acted as
counsel when members or employees of the Committee to Re-Elect the
President were interviewed ^
Mr. Gray. Well, Mr. Kenneth Parkinson, who was representing the
committee in connection with the civil lawsuit, certainly was there. I
believe he was the chief counsel there, the counsel of record, and he
made the arrangements with the U.S. attorney. The counsels who were
there with him were Paul O'Brien and Kissler and Jackson and a man
named Glenn Sedam, who was an attorney for the Committee to Re-
Elect the President. But they did not all sit in en bloc on all the inter-
views. There were one or two always present in an interview.
Senator Ervix. Do you have any questions. Senator Hruska?
Senator Hruska. No, sir.
Senator Ervix. I am awfull}^ sorry the President will not let ]Mr.
Dean come down and testify.
I have what purports to be a Xerox copy of a letter written by
]Mr. Jolm W. Dean III, counsel to the President, to Dr. Jeremy J.
Stone, director of the Federation of American Scientists, 20r> C Street
XE., AVashington, D.C., on AMiite House stationery, The White House,
April 20, 1972. It says :
Dear Dr. Stone : Thank you for yonr recent letter enclosing a copy of the
F.S.A. Newsletter with the article on Executive Privilege. I found the article
most interesting.
You asked whether President Nixon or any former Presidents have ever
asserted a claim that Presidential aides have blanket immunity from testifying
before the Congress on any subject. I am not aware of any public statement by
President Nixon or any past President to this effect.
This Administration adheres to the same doctrine of Executive Privilege which
has been developed through precedent and tradition, and followed by all recent
Administrations. The precedents indicate that no recent President has ever
claimed a "blanket immunity" that would prevent his assistants from testifying
before the Congress on any subject. The fact that this Administration has also
not made such a broad assertion is clearly evidenced by the examples cited in
your newsletter and the testimony of Mr. Flanigan before the Senate Judiciary
Committee.
With best regards,
John W. Dean III.
Counsel to the President.
I would like to have this inserted in the record.
[The letter referred to follows :]
91-331-
654
THE WHITE HOUSE
WASKI NGTON
April 20, 1972
Dear Dr. Stone:
Thank you for your recent letter enclosing a copy of the F, A. S.
Newsletter with the article on Executive Privilege. I found the
article most interesting.
You asked whether President Nixon or any former Presidents have
ever asserted a claini that Presidential aides have blanket immunity
from testifying before the Congress on any subject. I am not
aware of ajiy public statement by President Nixon or any past
President to this effect.
This Administration adheres to the same doctrine of Executive
Privilege which has been developed through precedent and tradition,
and followed by all recent administrations. The precedents indicate
t?iat no recent President has ever claimed a "blanket immunity"
that would prevent his assistants from testifying before the Congress
on any subject. The fact that this Administration has also not made
such a broad assertion is clearly evidenced by the examples cited- in
your newsletter and the testimony of Mr. Flanigan before the Senate
Judiciary Committee.
With best regards.
n W. Dean, ni
nsel to the President
Dr. Jeremy J. Stone
Director
Federation of American Scientists
203 C Street, N. E.
Washington, D, C. 20002
Senator Hruska. Could the letter to which it is a response be
inserted ?
Senator Ervin-. I do not have it.
Senator Bayh. Could we send a copy of that letter to Mr. Dean ?
Senator Hruska. INIaybe Mv. Gray could be given special dispensa-
tion to make it available to Mr. Dean.
655
Senator Bayii. You had better check with "Sir. Kleindienst to see
whether that is permissible or not. [Laughter.]
Senator Ervix. I have to express a very deep regret that the Presi-
dent has taken the action he has in restricting^ the testimony of
]\rr. Dean becaiiGe I think there are some things he conld throw some
light on. I see no reason in the world not to allow him to do so.
I have nothing further.
Senator Gurney. May I comment on that. INIr. Chairman?
It is true the President did say INIr. Dean could not come here and
testify, but he also said we could direct any and all questions we
wantecl to in the form of interrogatories. So he has not denied entirely
the right of the committee to inquire about these matters. I understand
the point of view of the distinguished Senator from North Carolina
that it is better to have a witness before you. I understand that, but it
is also true that the President has made available a way in which we
could get a lot of information if we Avould avail ourselves of it.
Senator Ervix. I practiced law a long time and I will tell the
Senator that I never could find a way to cross-examine words written
on a piece of paper. I think those with experience in law enforcement
and with private cases know that the only way you can get from a
witness what the witness knows is bj^ having him present in person.
Senator Gurnet. I might point out that on the occasion of ISIr.
Fortas' confirmation hearing before this committee — I was not pres-
ent, but I think the Senator from North Carolina probably was —
there was a request for a witness to come up from the White House
who was an attorney to the President. I do not remember his name
now. This was in connection with the possible assistance by the then
Justice of the Supreme Court in drafting proposed legislation. The
invitation was denied, and at that time, apparently, there was not
any tremendous protest by this committee, and certainly the then
incumbent of the White House, President Johnson, did not even give
an offer of interrogatories. So I think we have other precedents here
that bear on the work of this committee.
Senator ER^^^^ I was on the committee when Mr. Fortas was before
the committee and it appeared from his cross-examination that he
had talked to the President and so we did not need the witness to
supply that evidence. At lease that is the view I think the committee
took at that time.
Senator Hruska. Was Mr. Fortas on the President's staff at the
time? . J. ,1 o
Senator Ervin. No. The complaint was that a Justice ot the Su-
preme Court should not advise a President. Of course, that has been
more honored in the breach than not, not only in that case but m
other cases. ,
Senator Hruska. I would like to subscribe to the thought expressed
by the Senator from Florida that we have not availed ourselves of the
opportunity to elicit information from Mr. Dean by written inter-
rogatories. . , .
We all know it is better to have a witness before us m person so tliat
we mav examine and cross-examine. On the other hand, vast volumes
of litigation are conducted on the basis of written interrogatories,
even greater volume bv deposition. Limiting my comments now only
to interrogatories, it is resorted to only in those cases where it is not
656
practical or possible to get the personal presence of a witness before
the court or commission or investigatory body. I would imagine, un-
less we want to stand on principle, if we are interested in results, if
we are interested in the information that Mr. Dean can give us on
those points to which we seek to address ourselves, that it is available^
He has said so.
Now I am confident that if the type of examination that we have
witnessed, such as that to Avhich Mr. Gray has been subjected, if that
is the objective of having Mr. Dean present here, I would fully sub-
scribe even more firmly that the President should not allow him to-
come here. After all, his presence here would be a substituted pres-
ence for the President of the United States and there should be some
sense of dignity and respect exhibited for people of high office, and I
would seriously question whether that has always been the rule here
in the interrogation of several witnesses, including Mr. Gray, at all
times.
Senator Ervix. When depositions are taken everybody is author-
ized to be there in person and question the witness.
Under the law of my State you cannot take a deposition if a man
lives within TO miles of where the court is sitting. You have to pro-
duce him in person. I do not believe it is TO miles from here to the
White House. [Laughter.]
Senator Hruska. The Senator from Xebraska made an exception
as to depositions, because both parties are notified, both parties have
the right to be represented, if tliey are not present themselves.
However, on written interrogatories, in my State we allow them to
be used by both parties in a civil lawsuit.
Senator Ervix. The plaintiff can submit written interrogatories to
the defendant to answer, but the plaintiff does not have to do that. He
can subpena the defendant as a witness. I think there is quite a distinc-
tion, with all due respect to my good friend. I get letters from my
constituents and I write them back and they write me back and say I
didn't answer the question and it is a case of interminable letter writing.
Senator Gurxey. I have had the experience of interminable letter-
writing, too We might have that in written interrogatories to ]Mr. Dean.
But I don't think it would be one smidgeon of the interminability of
questioning that goes on in this hearing. I think we could settle the
question with interrogatories.
Senator Bath. I would observe tliat there may be some relationship
between the perception of questioning as interminable and the issue
involved.
The Senator from Indiana may be as guilty of that varying interpre-
tation as anvbodv else.
Senator Gurxet. I was not referring to the Senator from Indiana,
but if he wants to include himself it is all right with me.
Senator Bath. I thnik the Senator's description speaks for itself. _
Mr. Gray, as I recall, vou responded today to Senator Kennedy, m
relating jiist when these reports were going to Mr. Dean and when
you— when the FBI— found out about the Dean-Magruder-Liddy con-
versation, vou said that to the best of your recollection there wasnoth-
ino- there that alerted you to Dean's being involved. That is, m the
FD 302 that you got the day before. My recollection is that yesterday
you responded just the opposite to me.
' Mr. Grat. I am sorry, sir. That doesn't sound correct to me.
657
Senator Bath. A clay or two before tlie reports started ft'oino; to
Dean, I thoiinht you told me yesterday, there was known the relation-
ship between Dean, jMagnider. and Liddy.
Mr. Gray. I probably did tell yon that, but I think my testimony was
that the first information I had reffardinc; Mr. Magruder came in the
form of a teletype which I believe I saw on July 24. As I remember,
the white note on that teletype, in the upper left-hand corner, which
is what we o-enerally read — it is a summary of the teletype — contained
nothing tliat would indicate that. I then went on to say that within the
FD 302, the report of interview of Mr. Magruder, there were those
Avords, as I remember them.
Once again I am testifying now in substance, but I have already
said, and it is on the record, that Mr. Magruder had asked for recom-
mendations and had received them from Mr. Dean and Mr. Krogh,
that is correct. But I didn't have that particular FD 302. It came up to
nie in the third packet of investigative reports on September 13,
Senator Bayii. There were a number of reports that went to Mr.
Dean, liowever, after you did have this information?
Mr. Gray. Yes, sir, the third batch of those FD 302's and two
volumes of teletypes went to him.
Senator Bayh. I do not want to drag this out. You have been patient
and I feel that you have been very direct with the committee.
I do want to tie up a couple of loose ends. I am concerned with the
use of the information, perhaps, by Mr. Dean, and the propriety of his
presence. You have been very open with us on all that.
The whole purpose of Mr. Dean's getting the reports, the request by
the President, was to accomplish what ?
Mr. Gray. Well, I have testified quite a few times, Senator, that he
requested them within his official capacity as Counsel to the President
of the United States, in connection with the inquiry he was conducting
regarding White House involvement.
Senator Batth. How long did he continue to get the reports ?
Mr. Gray. The last time that he asked me for any reports was in
October.
Senator Bayii. Why is it that he was asking you for reports in
October vvdien it was on August 29 that President Nixon announced
that Mr. Dean had completed the investigation and reported to him
that no person then employed at the White House had been involved
in the Watergate ? ...
Mr. Gray. I think we must keep in mind there were investigations
conducted later on, following certain grand jury testimony. All I know
is Mr. Dean asked for them and I supplied them. This is a )50ssible
reason, but I don't know that that was his reason. I don't know
to this day whether his inquiry is open or closed.
Senator Bayii. I think one of the unfortunate aspects of this hear-
ing is that Mr. Dean's purpose and Mr. Dean's motives will never be
aired, and the refusal to let him participate tends to put you in a
light which I personally feel is unfortunate.
"On the ITT investigation, you said that Mr. Klemdienst has dis-
qualified iiimself?
Mr. Gray. Yes, sir, I was advised during the noon liour that Mr.
Kleindienst and Mr. Petersen, the Assistant Attorney General in
charge of the Criminal Division, had disqualified themselves.
658
Senator Bath. '\'\liat sort of position does that put you in?
Mr. Gr^\y. That puts me in the same position as I was before, as
Acting Director of the FBI, to make sure that we do the best iuA'esti-
gating job possible and turn that information over to them and follow
out their mandate to us in the memorandums that they are sending to
us, Senator Bayh.
Senator Bayii. What were the instructions ? You mentioned some-
thing, I recall, about a full court press.
]Mr. Gray. That is just a manner in which we are conducting the
investigation, but I respectfully declined this morning to discuss the
investigation, and I relied once again on the traditional rules and regu-
lations and policies of the Department of Justice.
Senator Bayh. I don't want to know the substance of the investiga-
tion. I thought this morning you had relayed to us the substance of
the instructions.
Mr. Gray. Yes; I said they were scoping out for us, if you will, if
that is the correct terminology, in their memorandums to us, and as we
furnish reports to them they review those reports and furnish addi-
tional requests to us. These are the career attorneys in the Criminal
Division who are moving this investigation and we are doing the in-
vestigating work for them as they direct.
Senator Bayh. Are there any limitations on the scope of the perjury
investigations by the Justice Department ?
Mr, Gray. No, sir, because I think you know. Senator Bayh, the
committee has referred that record over there. Then those attorneys
study it and come up with these memorandums and tell us to go do this,
and we comply and report back to them and they look at those reports
and tell us again to do this or this. This is the way it is going. We work
with them.
Senator Bayh. Was anybody excluded from the investigation by
instruction from the Justice Department ?
Mr. Gray. I don't really quite
Senator Bayh. Were you told not to investigate certain individuals?
Mr. Gray. No, we we're being told to investigate individuals. It is a
positive kind of thing.
Senator Bayh. The instructions did not say conduct a full investi-
gation except for the following people ?
Mr. Gray. Oh, no, sir.
Senator Bay'h. To get a general impression, since Aye can't get the
specifics, of the comprehensiveness of the Watergate investigation, I
want to'throw this in. I noticed in the New York Times yesterday a
story about a team, which included several of these Watergate defend-
ants, recruited to carry on violence, harassment of protest demonstra-
tions, and so on. I wonder if the investigation of Watergate was suf-
ficiently comprehensive to pursue this ? Did you find that this did in
fact exist? Did you find that any of the funds of the Committee to
Ke-elect the President were used for this type of thing ?
Mr. Gray. I think once again. Senator Bayh, when you go into the
substance, what those FD o02*s reveal, I would respectfully decline to
answer that question. But I would say, as I have testified earlier, that
this investigation was oriented toward an intercept of communications
violation.
659
Senator Bayh. If in the process of investigating an interception of
communications violation you accidentally stumble on the violation of
something else I suppose you have a responsibility to pursue it, would
you not ?
Mr. Gray. I^et me tell joii what happens. These reports are going to
the assistant U.S. attorneys and to the Criminal Division. Questrons
are raised and my prior testimony has been to the effect that I did
raise such a question and that I did get a response to it. Then a couple
of days later an individual Avithin the FBI, in an executive level posi-
tion, had a discussion with the people in the Criminal Division re-
gardmg that. You are correct. When we unearth something like that,
it comes to the attention of the U.S. attorney or it comes to our atten-
tion and we ask about it.
Senator Bayh. I share the concern expressed by my colleagues that
we are not going to have access to the files. When the Attorney General
gave that order, did he give you a reason for it ?
Mr. Gray. No, sir; he just called me up and he reeled off the in-
structions and I wrote them down and I said, "Yes, sir," and that was
the end of it. He hung up the phone.
Senator Bayh. Did he say that no information at all could be given
that was contained in FBI files ?
Mr. Gray. Yes, sir; he told me that I was no longer to discuss those
files.
Senator Bayh. This was not just the raw data?
Mr. Gray. No, sir,the W^atergate file and that I was to follow the
policj' of the Department of Justice with regard to our files.
Senator Bayh. And written materials relating to your Cleveland
speech, the memo showing the internal investigation conducted in
regard to the Ehrlichman transmittal letter, material on the memo
from the FBI legal advisor's office, all these fall into the prohibited
categories ?
Mr. Gray. Yes, sir. they all come under the general rules and regula-
tions of the Department of Justice.
Senator Bayh. It is rather far reaching, isn't it ?
Is that not to anybody or just not to the Senate?
Mr. Gray. No, sir ; I am to fall back on the traditional standards of
the Federal Bureau of Investigation. It is not available to anybody,
other than the exceptions that have been made with respect to the
Watergate files with regard to members of the Judiciary Committee
and its two staff'men and Senator Ervin's Select Committee and its
two staffmen.
Senator Bayh. Thank you.
I appreciate your patience.
Mr. Gray. Thank you. Senator Bayh.
Senator Hruska. jNIr. Chairman, I have received a copy of a letter
from a longtime member of the City Club of Cleveland in regard
to the speech which Mr. Gray made there last fall. I think it is
pertinent to the discussion that has been had on that matter. I ask
unanimous consent that it be included in the record.
Senator Ervix. Without objection it is so ordered.
660
[Tlie letter referred to follows:]
FOED, HOWLAND, WHITNEY & HaASE,
Attorneys at Law,
Cleveland, Ohio, March 7, 1973.
The Chairman,
The Senate Judiciary Committee,
Senate Office Building,
Washington, D.C.
Dear Sir : The question having been raised as to whether Mr. Gray's appear-
ance before the City Club of this city had political implications, this is a piece of
testimony on tiiat score. I enter a vigorous denial.
I have been a member of this club for many years, and on this occasion lis-
tened attentively to the entire proceeding in order to form a .judgment about
Mr. Gray's qualifications in this responsible position. His conduct, speech, and
answers to interrogatories were all of a very high order. He dedicated his main
remarks to an exposition of the nature and operations of the Federal Bureau of
Investigation. It was factual and informative and exactly what the Club had
sought when it solicited his speech ; in short, it was true to the nature of the
Club's function of bringing enlightenment on important subjects to its listeners.
I doubt if it crossed anyone's mind, among his listeners, that there were any
political implications in what he said. He was faithfully cari-ying out a mission
of information.
At the conclusion, he was heavily applauded, and the impression which all of
us carried away was that the nation was fortunate to have such an exi)erienced
and dedicated man in this important position. Nothing which has transpired
since has altered that opinion.
Faithfully yours,
David K. Ford.
Senator Ervin. You liave no other questions ?
Senator Hruska. Xo.
Senator Ervin. The chairman has instructed me to recess the hear-
ing to 10 :oO in the morning.
[Tliereupon, at 4:15 p.m., the committee recessed, to reconvene at
10 :30 a.m., Thursday, March 23, 1973.]
N03IIXATI0N OF LOUIS PATRICK GRAY III
THURSDAY, MARCH 22, 1973
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The committee met, pursuant to recess, at 10 :45 a.m., in room 2228,
Dirksen Senate Office Building, Senator James O. Eastland (chair-
man) presiding.
Present : Senators Eastland, Hart, Kennedy, Bayh, Byrd of West
Virginia, Tmmey, Hruska, Mathias, and Gurney.
Also present: John H. Holloman, chief counsel, and Francis C.
Kosenberger, Thomas D. Hart, and Peter Stockett, professional staff
members.
The Chair]man. The committee will come to order.
Senator Byrd, you may proceed.
Senator Byrd. Mr. Gray, you said that when you left the Xavy in
1960, you served "on the staff of the then Vice President Nixon in his
Senate Office."
Were you on the Vice President's Senate payroll ?
TESTIMONY OF LOUIS PATEICK GRAY III— Eesumed
Mr. Gray. Xo, sir, I was not.
To the best of my recollection, at that time I was paid by the Eepub-
lican National Connnittee. The reason for that is that I had my U.S.
Navy retired pay at that time.
Senator Byrd. Were you working in Mr. Nixon's Senate office ?
Mr. Gray. Yes, sir, that is where I worked.
Senator Bykd. Have you talked with Mr. Dean since the hearings on
3'our nomination began ?
Mr. Gray. Have I talked to him since these hearings began ?
Senator Byrd. Yes.
Mr. Gray. Y^es, sir, on and off I have.
Senator Byrd. AVhen ?
Mr. Gray. I don't remember the exact dates.
Senator Byrd. How many times ?
Mr. Gray. Well, it would have to be really an estimate, and I would
have to check for you. But I would estimate that it may be, oh, 8, 10,
or 12 times since these hearings began.
Senator Byrd. Were these all telephone communications ?
]Mr. Gray. Y'es, sir. He has not been in my office and I have not
been in his.
Senator Byrd. And you have not met with him personally since
the hearings began ?
Mr. Gray. No, sir, I do not believe I have that I can recall.
(6G1)
662
Senator Btrd. Were these calls initiated by you or by Mr. Dean?
Mr. Gray. I think that some of them probably were initiated by
him and some by me. I don't remember specifically.
Senator Btrd. What was the subject of the discussions, as you recall
them ?
Mr. Gray. These hearings and what was transpiring at these
hearings ?
Senator Byrd. And precisely what in connection with these hear-
ings?
Mr. Gray. I can't remember the precise matters discussed, other
than I would try to give him a feel of how they were going and that
type of thing, but I can't
Senator Byrd. IVliy would you try to give him a feel of how they
were going ?
Mr. Gray. I think probably he would be interested and I think
some people at the White House might be interested in how these
hearings are going. After all, I am a Presidential nominee, and I
certainly feel that I can talk to them.
You know, I still have the right of association.
Senator Byrd. You are not the nominee of Mr. Dean ?
Mr. Gray. Sir?
Senator Byrd. You are not the nominee of Mr. Dean ?
]Mr. Gray. No, I am not the nominee of Mr. Dean, but he is the
Counsel to the President.
Senator Byrd. Why would you call Mr. Dean to relate to him how
tlie hearings were going ?
Mr. Gray. I would call him the same as I made a couple of calls to
]Mr. Ehrlichman. I have contact over there and Mr. Dean is the person
on the White House staff who does have the Department of Justice
and the Federal Bureau of Investigation as a part of his departmental
liaison responsibilities.
Senator Byrd. Well, there has been an element of ubiquity about
Mr. Dean that we can't seem to explain.
What else was discussed with Mr. Dean ?
Mr. Gray. Well, I may have had other calls on other matters. I am
trying to remember now. Certainly on Wounded Knee — I remember
oiie just yesterday on Wounded Knee — that type of thing. I talk
about other things with Mr. Dean, Senator, other than just this.
I have to continue to direct the work of an ongoing bureau, you
know.
Senator Byrd. I understand that. But you said you talked to him
relative to these hearings and how they were going.
oSIr. Gray. That's right, and I would make the same kind of report
to the Attorney General.
Senator Byrd. What would you say in relating how they were
going ?
]Mr. Gray. I would relate in general the tenor of questions that were
being asked and that type of a conversation. It wasn't anything spe-
cific, as did somebody ask me this or that question. It was the scope
and the type of questions that were being asked.
Senator Byrd. Why would you not wait for him to call you ?
663
]Mr. Gray. I think there is no real difference as to who calls whom.
I think we both have have the right to telephone one another and, just
to be absolutely honest with you, I didn't think of it in those terms.
I can't see myself being placed in an absolute cocoon and not talking
to anyone.
Senator Brno. I don't question your right to call, but do you have
the responsibility to call JNIr. Dean and relate to him how the hearings
are going?
JNlr. Gray. Yes, I think I do and as Counsel to the President I think
he would be interested.
Senator Byrd. Did he recommend your nomination ?
Mr. Gray. No, sir; he didn't recommend my nomination, that I
laiow.
Senator Byrd. Then you would say that the Time story in the last
issue of Time was incorrect?
]Mr. Gray. I haven't read that story. Senator Byrd.
Senator Byrd. Would you supply for the record the dates, the times,
of those telephonic communications and recall as exactly as you can
the nature of them and the content thereof ?
]Mr. Gray. I would respectfully decline to make any submission of
that information for the record, sir, under the policies of the Depart-
ment of Justice that those are internal records and memorandmns of
the Department.
Senator Byrd. Do these constitute raw files of the Department ?
]Mr. Gray. Pardon me, sir ?
Those are internal records and memorandums, if there are any in
<;onnection with those calls.
Senator Byrd. Would these particular calls involve raw files of the
FBI?
Mr. Gray. No, these particular calls would not involve raw files of
the FBI.
Senator Byrd. Are you saying the Justice Department policy, which
changed the groundrules recently, precludes you from supplying to
this committee information concerning telephonic conversations with
Mr, Dean since these hearings began ?
Mr. Gray. No, I wouldn't put it that way. I would say initially,
when I came up here and made my initial offer, I read the rules and
regulations and the policies of the Department of Justice and now
I have been instructed to pursue those policies and to adhere to them,
Senator Byrd.
Senator Byrd. You have indicated that such recent conversations
did not involve raw files. Did they involve any conversation in connec-
tion with the Watergate investigation ?
Mr. Gray. Not in connection with the conduct of the Watergate in-
vestigation or the substance of the Watergate investigation. They in-
volved this particular hearing, what was transpiring here, and other
matters of business.
I remember specifically one yesterday on the Wounded Knee
situation. . , -ttt
Senator Byrd. Well, this hearing hasn't gotten into the bounded
Knee situation, but if your calls to Dean involved this hearing and
what transpired at this hearing, that's all-embracive. Can you be more
specific as to what was discussed and can you specifically say that the
664
Justice Department's new policy, which you are now following — of
not permitting this committee to see raw files — also encompasses in-
formation with respect to these telephonic conversations which have
occurred between you and Mr. iDean since these hearings began ?
Mr. Gray. Yes, sir. I would saj those conversations concern these
hearings. They also concern other matters of business, other cases.
other situations, and I am. adhering to the rules and regulations and
policies of the Department of Justice in respectfully declining to pro-
vide these.
Senator Byrd. ]Mr. Gray, I am not interested in information with
respect to other cases, Wounded Knee, et cetera, et cetera. I am only
interested in conversations which have a direct bearing on j'our quali-
fications to serve as Director of the FBI. This Avould embrace the
"Watergate break-in. It would embrace other things that have been gone
into during the conduct of these hearings. Now, could you confine
yourself to those things and supply that information to the committee?
]\Ir. Gray. Senator I5yrd, I am testifying here to the best of my
knowledge and recollection with regard to these calls, and as to the
number of them. I know what the substance of them was, and I am
going to stand on that testimony, if I may, Senator,
Senator Byrd. And 3'ou are going to deny this information to the
committee ?
Mr. Gray. Yes, sir ; I am going to stand on my testimony.
Senator Byrd. Is the Watergate investigation continuing?
Mr. Gray. Yes, sir.
Senator Byrd. The FBI is continuing its investigation ?
Mr. Gray. The FBI at this point in time is being directed by the
Department of Justice to look into certain areas.
Senator Byrd. Would you delineate those areas.
Mr. Gray. Xo, sir. I prefer not to discuss the substance of that
investigation at all.
Senator Byrd. Is Mr. Dean being supplied further with raw files
or letterhead memoranda ?
Mr. GR.S.Y. No, sir ; he has not made any such request.
Senator Byrd. Since when ?
Mr. Gr.vy. Since the last request that he made, sir.
Senator Byrd. When was that?
INIr. Gray. That was in October of last year.
Senator Byrd. And the October 12 submission of report was the
last submission ?
Mr. Gray. That is correct. Senator.
Senator Bypj). Can the FBI not initiate investigations into possible
criminal activities on its own ?
Mr. Gray. There are areas in which this occurs. There are other
areas when we work closely with the assistant United States attor-
neys as we do in the preponderant majority of our cases. We are
guided and directed ancl work very, very closely together, shoulder-to-
shoulder with the assistant U.S. attorneys.
Senator Byrd. Was the FBI precluded from initiating investiga-
tions on its own, beyond an investigation involving the IOC statute
in connection with the Watergate matter ?
Mr. Gray, No. I think what you may be referring to is when I ini-
tially asked about some of the activities of Mr. Segretti, and then this
C65
was discussed with the Department. The Department was well aware
of what we were doing in connection with the interceptive communica-
tions. On the basis of the information available at that time, the con-
clusion was reached that we did not need to proceed into any of these
otlier areas, that we stay right in the intercept of comnimiications area.
Senator Byrd. But that docs not answer my question.
Could the FBI not have initiated investigations on its own which
would have gone beyond the investigation involving the violation of
the IOC statute?
Mr, Gr^vy. Not in that particular area, because that involved the
possiblity of election laws violations, and there is a prescribed policy
within the Department for that. These requests were made of the De-
partment and these discussions were had with the Department.
Senator Bykd. How^ can an investigation be given "full court press"
vvhen it is restricted to the possible violations, in this kind of situation,
of one statute only — the IOC statute ?
Mr. Gray. We gave it a full court press in connection with our in-
vestigation insofar as the alleged violations of the IOC statute were
concerned. Senator Byrd.
Senator Byrd. tlow much time do you spend away from vour office,
Mr. Gray?
Mr. Gray. In what time frame are we speaking, Senator Byrd, be-
cause it varies, ISIy workweek on the average, on the low average, will
run 52 to 58 hours and on the high average will run pretty close to 70
hours, because wherever I am I have briefcases with me, 1 have work
wnth me. I work every evening at home. I don't go out in the evenings.
When I come home I sit down and work. It is that kind of a position.
Senator Byrd. You are talking to an old pro,
Mr, Gray. I realize that, a Senator s work is verv, verv hard, too.
Senator Byrd. How much time have you spent away from your of-
fice? I am speaking generally. I am not asking for exact hours or
minutes. Going back over the 10 months of your acting directorship,
I noted that when this matter involving tlie Watergate raid broke on
June 17 last year, joii were away from Washington, which was all
right, but you were 4 days in getting back to Washington, and yet
when you talked with Washington on June 17, you recognized that
this was a very tough, difficult, complex, sensitive case, and that it
might involve who knows whom, and yet you did not come back to
Washington until the 21st. Then, time after time thereafter, when
things came up in this matter you were called in St. Louis, or soine
other distant place. During the time that you made your decision with
respect to the shooting out of the tires of the Southern Airways air-
plane you were in Connecticut. Although the hijacking had been gomg
on for 29 hours, vou were in Connecticut.
Just to be very blunt, what kind of a Director of the FBI is tins
w^ho spends so much time away from the FBI, especially during the
10 months of a verv critical test period of his acting directorship?
Mr, Gray, I thiiik one of the greatest utilizations of my time, Sen-
ator Byrd, involved my visits to'^the various field offices. It was a tre-
mendous educational exercise for me, to try to learn how the FBI
works. Also, I think it was a tremendous benefit to the men and women
of the FBI.
It is true, of course, that I made these field office visits and I tried
to visit each one of them. I visited 58 of the 59 field offices.
666
Senator Byrd. What field office did you not visit ?
Mr. Gray. I did not visit Honolulu.
Senator Byrd. ^Ir. Tunney asked for the date on which ]Mr. Colson
sent Mr. Hunt out to see Dita Beard. Your answer came back, "March
1972" ; can you be more specific ?
]Mr. Gray. That is the answer we have and we cannot be more spe-
cific, Senator.
Senator Byrd. Mr. Gray, on March 7, when you and I were dis-
cussinor the circumstances of INIr. Dean's handing over the equipment
taken from Mr. Hunt's office to the FBI, vou stated, "This came up as
a result of agents desiring to find out whether or not ]Mr. Hunt had
an office there, and IMr. Dean said that he would have to check whether
or not Mr. Hunt had an office there and would ascertain that." Are
we to presume the FBI did contact Mr. Dean concerning Mr. Hunt on
June 10?
Mr. Gray. I think this may have come up at the time of the inter-
view with Mr. Colson when that statement was made. I believe that
to be the time when it did come up. Senator Byrd.
Senator Byrd. But you indicated that the circumstances of Mr.
Dean's turning over the equij^ment which he had gotten from INIr.
Hunt's office to the FBI did come about as a result of agents desiring
to find out whether or not ]Mr. Hunt had an office there, and Mr. Dean
said that he would have to check whether or not INIr. Hunt had an
office there. That is your own testimon3^
Mr. Gray. That is correct, and I think you are reading it accurately
from the record. Senator.
Senator Byrd. What agents were involved ?
Can you identify the agents ?
INIr. Gray. I think maybe one of them was an agent named Lano,
and I think the other was ]Mahan. I believe that is correct.
Senator Byrd. Do you know precisely when these agents contacted
Mr. Dean and at what time they contacted Mr. Dean desiring to find
out if ]Mr. Hunt had an office there ?
]Mr. Gray. I don't know the exact time of the day but I know it was
during the time of the interview with ]Mr. Colson.
Senator Byrd. The FBI agents contacted Dean at that time?
^Ir. Gray. It just came up at that time. Mr. Dean was there and the
testimony that I have given you is exactly the way it came up.
Senator Byrd. But when did the FBI agents contact ]Mr. Dean?
INIr. Gray. Thev didn't contact Mr. Dean. Mr. Dean was sitting there
at that time. That was during the Colson interview that this exchange
occurred.
Senator Byrd. At which time Mr. Dean indicated he would have to
check it out ?
]Mr. Gray. That is correct, sir.
Senator Byrd. When was that?
]Mr. Gray. That was at — this exchange of conversation occurred at
the time of the Colson interview, during the Colson interview.
Senator Byrd. What day was that ?
jNIr. Gray. That was the 22d day of June.
Senator Byrd. The 22d day of June ?
Mr. Gray. Yes, I am sure that was the date of interview.
667
Senator Bykd. Are you saying- that Mr. Dean, on the 22d day of
June, indicated that he would have to check it out as to whether'Mr.
Hunt had an office, notwithstandino- the fact that on the 19th, 3 davs
prior to that, he had asked Mr. Kehrli and INIr. Fielding to go into
:Mr. Hunt's safe and on the 20th those possessions from Mr. Hunt's
safe had been put m his— Dean's— office ? Are you saying that?
]Mr. Gray. I am just telling you what happened at the Colson inter-
view, Senator Byrd. That was the statement that was made at the
Colson interview and later reported.
Senator Eyed. Which was on the 22d ?
Mr. Gray. Yes, sir.
Senator Byrd. Dean indicated at that time that he did not know
whether Mr. Hunt had an office ?
Mr. Gray. He said he would have to check it out.
Senator Byrd. Check it out.
And all the while the possessions of Mr. Hunt's safe were hidden
in Mr. Dean's office ?
Mr. Gray. That could very well have been.
Senator Byrd. That is correct, isn't it ?
Mr. Gray. No, that is after the fact.
Senator Byrd. But it is correct ?
Mr. Gray. That is right, but I did not know it at the time of the
Colson interview. I did not know it at all during that period.
Senator Byrd. But you should have known it at least on the date of
the 27th and on the date of the 28th after Mr. Dean had turned over
these possessions to the FBI on the 26th. Did this not create any sus-
picions in your mind ?
Mr. Gray. No, it did not create any suspicions in my mind at all.
I testified, I think previously on this particular subject, that this man
is the Counsel to the President. He is conducting an official inquiry
for the President. These are Presidential papers and there is a long-
history regarding the character of Presidential papers and what can
and cannot be done with Presidential papers. I think in that same ex-
change of questions and answers that we had, Senator, that I testified
along these lines.
Senator Byrd. "Well, Mr. Hunt had been identified as a suspect in
the Watergate case on the I7th.
Mr. Gray. No, sir; I would not conclude that. We were not at all
prepared to reach that conclusion at that time. I think my testimony
earlier with regard to this subject was along those lines.
Senator Byrd. Well, your own testimony indicates that the Wash-
ington field office interviewed Mr. Hunt at his home on the evening of
June 17, and your own testimony indicates that Mr. Butterfield at
the White House was informed by the Washinirton field office on
June 17 at 5 :30 or around 6 or 7 o'clock that Mr. Hunt might possibly
be involved in the Watergate break-in.
Mr. Gray. That is right. We didn't know and we can't make that
assumption based on the information we had available to us at that
time that he was involved in the IOC aspects of it. All we had, as I
recollect, was a check to his country club at that time.
Senator Byrd. But it was enough, apparently
Mr. Gray. It was enough to make us want to go call upon him and
talk with him and he didn't see fit to talk with us.
G68
Senator Byrd. And it Avas also enouo-li for JNIr. Bntterfield at the
White House to be informed by the FBI tliat Mr. Hunt ^Yas possibly
involved ?
Mr. Gray. That's right.
We suspected he was involved, but, you know, just to suspect that a
person is involved doesn't mean that the person is. We had no basis
on which to say this man is a suspected participant in the IOC. We
did not have that kind of information at that time. We had to go out
and acquire all kinds of information in order to build that mosaic, that
evidenciary pattern.
Senator Byrd. But that is beside the point.
What I am saying here is that the FBI had good reasons to suspect
that ]\Ir. Hunt was involved in the Watergate breakin on June 17, the
date on which that break-in occurred.
Secondly, Mv. Dean had Mr. Kehrli and INIr. Fielding break open
Mr. Hunt's safe in an office in the Old Executive Office Building on the
night of June 19, and the properties of Mr. Hunt that were taken from
that safe were placed under the possession of Mr. Dean the next day
on the 20th, and kept by him until the 26th, on which clay he turned
those properties over to the FBI.
In the meantime on June 22, during an interview that was being con-
ducted by the FBI with jNIr. Colson and in the course of which inter-
view ]Mr. Dean was sitting in, the question came up as to whether or
not Mr. Hunt had an office in the EOB. Mr. Dean indicated at that
time — he was not being interviewed, this was Colson being interviewed,
according to your testimony — but Mr. Dean indicated, apparently vol-
unteered the information, that he would have to check to see, knowing
all tlie time that the office was there, that the safe had been broken
open by his orders, that the possessions had been removed, and that
they were in his own possession. Then on the 26th, those possessions
w^ere turned over to the FBI. You had conversations with Mr. Dean,
I believe, on the 27th and again on the 28th. Didn't Hunt's possible
involvement ; didn't the breaking in of the safe ; didn't the keeping of
these properties belonging to Mr. Hunt by Mr. Dean in his office for
6 days without involving the FBI, knowing all the time the FBI was
investigating Mr. Hunt, and having at least two opportunities on the
21st and the 22nd in your office, I believe, to reveal this information,
but not having revealed it, didn't all this create some kind of sus-
picions and wonderment and questions in 3'our mind that should have
been asked of Mr. Dean, should have been pursued and followed ?
Mr. Gray. No, sir.
I have explained this several times.
He turned over to us the material that came from that office. We
found it to be incriminating to say the least, and furthermore he has
a responsibility as Counsel to the President of the United States to
safeguard the Presidential papers, to make absolutely certain that
confidential, classified material and that sort of thing is safeguarded.
This is not going to raise those kind of suspicions.
I would like to sav further, too, Senator Byrd, that as far as the
FBI is concerned this man, Hunt, at that time was potentially
involved, as you said to me just now in this exchange. We had no
real tie to bring him into this particular IOC thing at that time other
than the finding of this check. We had to go out and develop it.
669
Senator Btrd. That is again beside the point entirely that I am
discussing here. He was ah-eady suspected by FBI agents. The FBI
wanted to know whether or not he had an office in the old Executive
Office Building. So it is beside the point as to what may not have
been proved about Hunt at that time. It was enough evidence to raise
one's eyebrows.
]Mr. Gray. I would say, at the time, it wasn't enough to raise my
eyebroATE or the eyebrows of the agents who were doing the question-
ing. Later when these papers were delivered to us, we were not con-
cerned because we had the papers and we know this man has a duty
to the President and that these Presidential papers are the property
of the President.
Senator Bted. You have known of Presidents being betrayed, have
you not, by a confidant ?
Mr. Gray. I think there may have been some Presidents in our
history who have found themselves in this situation, yes, sir.
Senator Byrd. And surely Senators have been betrayed ?
Mr. Gray. Yes, sir.
Senator Byrd. Governors betrayed?
Mr. Gray. Yes, sir.
Senator Byrd. Even Christ was betrayed by one of His chosen few.
What I can't understand, this ]3resumption of regularity goes so
far and so deep that everything is accepted at face value, without
question, without the slightest iota of suspicion.
^Ir. Gr.vy. I wouldn't say that, not everything. You are asking me
about somethino-
Senator Byrd. Everything with respect to what I have just asked
you.
Mr. Gray. You are asking me about a specific area.
Senator Byrd. AVhy did the agents have to ask Mr. Dean as to
whether or not ]Mr. Hunt had an office in the Executive Building?
INIr. Gray. It was as has been reported to me. It was a chance re-
raark on the part of the agent.
He did not know what he was looking for or what he Avas after. It
is one of those things that an agent Avill ask.
Senator Byrd. It wasn't exactly chance, I would say. You are talk-
ing about a conversation on tlie 22d of June, when on the ITth ]Mr.
Hunt was suspected of involvement and such information was relayed
]>v the FBI to the White House. Vv'hy didn't the FBI pick up the
telephone and call the White House switchboard to see if iSIr. Hunt
had an office there ?
:Mr. GrvAY. I think a number was called there. We were trying to
find out exactlv what number that was, and I don't know Avhether
they have pinned that down. We clid make that call.
Senator Byrd. Did the phone ring?
Mr. Gray. The phone rang. yes.
Senator Byrd. Did vou try again?
]Mr. Gray. No, sir, the phone rang and it was answered.
Senator Byrd. By whom ? , i • ^i.
ISIr Gray. ISIy recollection is that this has not been placed m the
public record, and this is substance and I would refer the Senator to
the record.
91-331—73 43
(570
Senator Byrd. What information is substance? We already know
Mr. Iliint liad an office there.
]Mr. Gray. That is correct, sir, but von are asking questions, Sena-
tor Byrd
Senator Byrd. Concerning a telephone call.
Z\h: Gray [continuing]. That are going into substance, and all I ain
saying to you, sir, is this is in the 1\'atergate investigative file.
Senator Byrd. Well, as I recall a news story, someone from one of
the local newspapers made the call and had no problem getting through
tlie switcliboard.
Since Z\h: Dean said that lie would have to ciieck it out as to whether
or not ]Mr. Hunt had an office in the EOB, did the agents follow up on
^Ir. Dean to see if he checked it out, and if not, why not ?
]Mr. Gray. I believe I previously testified on the record here, and that
is why I am going to respond to you, Senator Byrd, in accordance witli
my instruction, that yes, these materials were voluntarilv delivered to
the FBI.
Senator Byrd. Would you say that again, please ?
Mr. Gray. These materials were ^■oluntarily delivered to the agents
of the Federal Bureau of Investigation.
Senator Byrd. But this does not answer my question.
I am an FBI agent. I am sitting in on an interview witli a gentleman
here. You are JNIr. So-and-So. The question comes up as to whether or
not ]Mr. Hunt has an office in the Old Executive Office Building. You
say, "I will have to check this out.'- Why wouldn't I, as an FBI agent,
follow that up and see if you checked it out ? I would follow that up
the next day.
]Mr. Gray. The only way I can account for that is that those agents
were working around the clock on many, many leads. They had the
answer from Mr. Dean, and they thought eventualh' it would be fol-
lowed up. That is the only way that I can account for it. This happened
down at the working level, and I learned about it, you know, after the
fact in great and copious detail in preparing for these hearings. Sen-
ator Byrd. But I did not know this at that time in that detail.
Senator Byrd. Did any FBI agent ever express concern at Mr. Dean's
having gotten Mr. Hunt's possessions that were in the safe instead of
the FBI's having gotten the possessions ?
]Mr. Gray. I think we were interested in the chain of custody. It was
in regard to being able to utilize those materials as evidence should we
have to and that we did. I recollect I had a telephone call on that
subject.
Senator Byrd. From vs^iom ?
!Mr. Gray. I think ]Mr. Dean called me, my recollection of it is, and —
yes, it was during that call on the 27th day of June of 1972 at 9 :28 a.m.
when I mentioned to him the chain of custody regarding Mr. Hunt's
eflPects. In that same telephone conversation, t asked if he could pro-
vicle us with photos to assist in identifving the person alleged to be
with Mr. Flunt at the Plavboy Club in ]\Iiami. and also in that same tele-
phone conversation. I jwinted out to him the fact that a gun had been
found in ISIr. Hunt's effects delivered to us. I asked what security pre-
cautions existed at the White House to prevent this kind of thing from
occurring, people carrying guns into the White House.
f ■ 671
Senator Eyrd. The next day ]Mr. Dean called you at 10:25 a.m., re-
garding leaks concerning material deli\ered to the FBI. What particu-
lar leak and -what specific material did he have in mind?
Mr. Gray. He Avas calling me then about those rumors that were
continuing, as he put it, to the effect that tlie FBI was dragging its
feet in this investigation and that a gun had been found in ]Mr. Hunt's
effects. This was the subject of that call, as best as I can recollect it. sir.
Senator Byrd. On the same afternoon at 4 :35 you called him. You
state 3"0u have no recollection of the substance of that call. Could it
have been with respect to ]Mr. Hunt's properties?
ilr. Gray. Xo, I do not think it was. I covered that pretty thor-
oughly in that morning call. That is Avhy I am sure it isn't. I have
tried to remember it. It could have been on leaks, it could have been
on toll call records, or it could have been on witness interviews, but I
just don't know.
Senator Byrd. Going back to Mr. Dean, when he indicated that he
would have to check to see if Mr. Hunt had an office in the Old
Executive Office Building, he lied to the agents; didn't he?
yir. Gray. I would say looking back on it now and exhaustively
analyzing the minute details of this investigation, I would have to
conclude that that probably is correct, yes, sir.
Senator Byrd. Xow, you just conclude that at this point.
How about on the 27th, the day after
]Mr. Gray. Xo. sir. No, sir, there were none of us that discussed it in
that time frame. We did not even consider it. We didn't think about it.
Senator Byrd. I cannot for the life of me, with all due respect to
you, imagine how these things would not have occurred to you in the
face of the chain of events that are on the record.
Mr. Gray. We are looking at it in hindsight. Senator Byrd.
Senator Byrd. I am talking about the 27th — looking back on the
10th and the 22d of June.
Mr. Gray. I think you have to place it in the proper perspective as
we looked at it with a fast moving, fast-paced investigation, witli
events and reports and details coming in. I am saying to you that it
did not occur to us then. We were concerned at the time about the
chain of custody. There is no question about that.
Senator Byrd. Mr. Gray, hindsight is a very useful agent. Let's
take hindsio-ht for a moment. You indicated that Mr. Dean probably
lied to the FBI agents as you now look back, yet yesterday you said
vou would continue to sencl to him raw FBI files if he requested them.
Why would you now continue to send raw FBI files to an individual
who probably lied, to use your words, to an FBI agent?
Mv. Gray.* Well, Senator Byrd, I think that you have got to realize
once airain that I am a Bureau Chief in an executive departmeiit of the
Government, that I have to take orders from somebody, that I do
report to somebody, that I am just not out there in the open, you know,
independent and (loing exactly as I please, and that man is Counsel
to the President of the United States.
Senator Byrd. I recognize all this.
Mr. Gray. I think you know that his first duty — I would like, if I
may, to let the record clearly show that I have testified that his first
duty was to the President of the United States in connection with the
672
Presidential papers in the White House, and this was a recognized
duty of long standing.
Senator Bykd. Mr. Gray, where does your first duty lie, to the
President of the United States or to the FBI ?
Mr. Gray. I'm sorry, sir?
Senator Btrd. Where does your first duty lie, to the President of
the United States or to the FBI ?
^Ir. Gray. I think that that is a tough question and I have said that
before. I am a Bureau Chief in an executive department of the Gov-
ernment. I take orders from the President of the United States and, as
I think I previously testified, if the Congress Avants to put this FBI
out into independent orbit and let its Director operate the FBI
as he sees fit, we may indeed be creating a situation in which we
are going to develop a national police force. This is a very real risk.
It is a A ery serious question. It is not a light question. But at this
time, by virtue of congressional enactment, I am in the position of
Acting Director at the pleasure of the President of the United States.
I do take my orders from the President of the United States. I can't
evade that.
The Chairman. Well, does the law subject you to the President?
Mr. Gray. Yes, it does. Senator.
The Chairman. Congress has had a hand in that; hasn't it?
jSIr. Gray. Yes, sir, that law was enacted by the Congress of the
United States.
Senator Byrd. Granted all that, why couldn't you have called the
President and said, "Mr. President, do you want these raw files? May
1 have a letter from you requesting them?"
j\Ir, Gray. I did not deem it appropriate under the circumstances to
do it. I did not at am' time during these investigations deem it ap-
propriate to do that.
Senator Byrd. I find it especially intriguing, Mr. Gray, that you, as
late as October 12, would submit to Mr. Dean raw investigative files
after the President, in the August 29, 1972, press conference, referred
to the White House investigation as a "complete investigation," saying
that no one "presently employed" in the White House staff, or in the
Administration, was involved in "this very bizzare incident." Yet in
the face of the President's having said the investigation was com-
plete— 2 months later you would supply to a man, whom you have
stated under oath and on the record here as one who probably lied to
FBI agents, raw files without any question as to whether or not the
White House in^'estigation Avas continuing, without any suspicion in
your mind as to how those files might be used, without seeking further
instructions from the man from whom you do take orders and to whom
you owe the supreme duty. This is intriguing. Would you like to com-
ment on it ?
Mr. Gray. Yes, sir. I am not at all certain that the President made
those exact remarks
Soiuitor Byrd. You are not ?
Ml". Gray [continuing]. So I cannot comment on them. But if you
were rending from that announcement, of course, those are the remarks
I don't know. I am sa^'ing to you I don't remember the exact remarks.
Senator Byrd. Xo, I wasn't reading it. Let me read it for the record.
This is from the press conference of the President on August 29, 1972^
673
at San Clemente, Calif. I will ask that the transcript be put in the
record.
The Chairman. So ordered.
[The document referred to follows :]
Press Conference No. 27 of the Pkesidknt of the UNrna) States
LA CASA PACIKICA, SAN CI.EMENTE, CALIF.
The President. We will go right ahead with your questions, because I Icnow
you want to cover perhaps some international as well as domestic matters,
including, I understand, for the first time, political matters.
Question. Mr. President, are yon pcrsonulhj investigating the niishandruK) of
some of your campaign funds, and do you agree icith former Secretarn Cunnally
that these charges are harmful to your re-election?
The President. Well, I commented upon this on other occasions, and I \\ill
repeat my position now.
With regard to the matter of the handling of campaign funds, we have a new
law here in which technical violations have occurred and are occurring, appar-
ently, on both sides. As far as we are concerned, we have in charge, in Secretary
Stans, a man who is an honest man and one who is very meticulous, as I have
learned from having him as my Treasurer and Finance Chairman in two previous
campaigns, in the handling of matters of this sort.
Whatever technical violations have occurred, certainly he will correct them
and will thoroughly comply with the law. He is conducting an investigation on
this matter, and conducting it very, very thoroughly, because he doesn't want any
evidence at all to be outstanding, indicating that we have not complied with the
law.
Question. Mr. President, tvouldn't it be a good idea for a special prosecutor,
even from your standpoint, to be appointed to investigate the contribution situa-
tion and also the Watergate case?
The President. With regard to who is investigating it now. I think it would
be well to notice that the FBI is conducting a full field investigation. The r)epart-
meut of Justice, of course, is in charge of the prosecution and presenting the
matter to the Grand .Jury. The Senate Banking and Currency Committee is con-
ducting an investigation. The Government Accounting Office, an independent
agency, is conducting an investigation of those aspects which involve the cam-
paign spending law. Now, with all of these investigations that are being con-
ducted, I don't believe that adding another special prosecutor would serve any
useful purpose.
The other point that I should make is that these investigations, the investiga-
tion by the GAO, the investigation by the FBI. by the Department of .Justice,
have, at my direction had the total cooperation of the — not only the AVhite
House — but also of all agencies of government. In addition to that, within our
own staff, under my direction, Counsel to the President, Mr. Dean, has conducted
a complete investigation of all leads which might involve any present members
of the White House staff or an.vbody in the Government. I can say categorically
that his investigation indicates that no one in the White House staff, no due in
this Administration, presently employed, was involved in this very bizarre
incident.
At the same time, the committee itself is conducting its own investigation, inde-
pendent of the rest, because the committee desires to clear the air and to be
sure that as far as any people who have responsibility for this campaign are
concerned, that there is nothing that hangs over them. Before :Mr. Mitchell left as
campaign chairman he had employed a very good law firm with investigatory
experience to look into the matter. :Mr. MacGregor has continued that investiga-
tion and is continuing it now. I will say in that respect that anyone on the cam-
paign committee, Mr. MacGregor has assured me, who does not cooperate with
the investigation or anyone against whom charges are leveled where there is a
prima facie case where those charges might indicate involvement will lie dis-
charged immediately. That, also, is true of anybody in the Government. I think
under these circumstances we are doing everything we can to take this incident
and to invesrigate it and not to cover it up. What really liurts in matters of this
sort is not the fact that they occur, liecause overzealous i)eop]e in campaigns do
things that are wrong. What really hurts is if you try to cover it up. I would say
674
that here we are. with cnntrol of the asencies of the Government and p''e.sninahly
with control of the investigatory agencies of the Government witli the excep-
tion of the GAO, which is independent. We have cooperated completely. We have
indicated that we want all the facts brought out and that as far as any people
who are guilty are concerned, they should be prosecuted.
This kind of activity, as I have often indicated, lias no place wliatever in our
political process. We want the air cleared. We want it cleared as soon as
possible.
* * >!< "^ * * *
Seiiiitor Byrd. The President said on August -20 :
In addition to that, within our own staff, under my direction. Coun.sel to the
President. Mr. Dean, has conducted a complete investigation of all leads whicli
might involve any present memliers of the White House staff or anybody in the
Government. I can say categorically that his investigation indicates that no (me
in the White House Staff, no one in this Administration, presently emploj-ed, was
involved in this very bizarre incident.
Mr. Gray. Yes, sir: I just wasirt f.uniliar witli tlie language.
I gave testimony yesterday, I l)elieve, to the elfect th:it v.lien Mr.
Dean called and requested these additional investigative reports, I did
not question his right to do it, I did not question his purpose, and I
assumed he was coittinuino- to conduct his inquiry. Indeed, he may even
be conducting his inquii'v now. I don't know.
Senator Byrd. But in any event, and notwithstanding tliat, FBI
raw tiles will continue to be submitted by you to ]N[r. Dean if he asks
for them ?
Mr. Grvy. He is there in his oflicial ca[)acity as Counsel to the
President.
Senator Byrd. One migh.t say then that in this particular situation
they are being sent to the Wliite PTouse as a matter of course?
Mr. Gray. Xo, sir, one might not say that, because they have not
been requested. The bust request was made in October. I have had
n.o further requests.
,Senator Bi'ro. ^Iv. Gray, you sup|)lied for the record on March 7,
■;it page o29, an inventory of the cont(Mits of Mr. Hinit's office that
had bep]i turned over to the FBI by Mr. Dean on June 26. In that
inventory there was a list of items that were contained in a black
attache case. The list is a bit cfmfusing. I Avonder if you could
straighten it out?
The list reads. "Four Kel-Com Transceivers Technical ^Manual and
Operating Instruction--Bell & Howell, 148-171 MCS.'' Does that
mean that four walkie-talki(>s were thei'e and a technical manual and
operating instruction book?
M]-. Gray. I am pretty sure that's what that means. Senator. A^'hat
we would call walkie-talkies are the black boxes, I guess, of 8 to 10
inches in height, with a little antenna sticking out at the top. That
was the type of equipment similar to that utilized by the individuals
who were apprehended at the Watergate. •
Senator BniD. "What is really being stated then is that there were
four Kel-Com walkie-talkies, not four ]vel-Com Transceiver Tech-
nical ^lanuals?
.Mr. Gray. No.
Senator Byrd. Four walkie-talkies?
Mr. Gray. That is my recollection of it and I have looked at that
material during the preparation of these hearings.
675
I am beiiiir advised that they were four technical manuals for Kel-
Cotn transceivers.
Senator Bykd. And not four transceivers ?
^Ir. Gray. Xo. sir.
Senator B'^'ro. "Were tliere any transceivers ?
Mr. Gray. I recollect I saw some, but
Senator Byrd. "Would you look at your list there?
^Ir. Gray. Yes. I will have to look at this list because I am relying
on memory now.
Xo. I think not, sir.
Senator Byrd. There were not ?
Mr. Gray. Xo. sir.
Senator B'iTu:). There were no walkie-talkies ?
^Ir. Gray. Xo. sir.
Senator Byrd. I note that this inventory is made up of two pailr :
One. a list of items which apparently were turned over by ^Ir. John
Dean; and a list of items which apparently were turned OAer by Mr.
Fred Fieldint:'. Is that correct ?
3.1r. Gray. Xo, sir. I supplied this list for the record, but I didn't
supply any more than that. The details of the turnover, contained
in the Watergate investigative file, is substance and I am going to
have to respectfully decline to answer that question.
Senator Byrd. But the information 3-ou have already supplied stares
that Mr. Fred Fielding furnished Special Agents Daniel C. ^lahan
and Michael J. Kean of the FBI. one large cardboard box sealed vrith
tape and marked with pen "Top Secret.*'
An inventory of the contents of that box was listed, and item 10
in tliat box is the black attache case.
Mr. Gray. You are referring now to the in.ventory schedule itself
that is here ?
Senator Byrd. By Mr. Fielding
^Ir. Gray. Yes. that is correct.
Senator Byrd. Was Mr. Fielding ever interviewed by the FBI with
respect to the contents of that box ?
:Mr. Gray. ]Mr. Fielding v^•as interviewed by the FBI and was also
interviewed by the assistant V.S. attorneys regarding the contents:
yes. sir.
Senator Byrd. Was there any indication that the full contents of the
box were turned over to the FBI ?
]SIr. Gr^^y. Yes, sir.
Senator Byrd. Or were not turned over to the FBI i
yn: Gray. Thev were turned over to the FBI.
Senator Byrd. 'Did the FBI consider the possibility tliat 3lr. Hunt
may have returned to his office at the Executive Office Building after
the break-in?
Mr. Gray. We thought about it. and of course we cannot talK to .Mr.
Hunt. We have no information that he did return.
Senator Byrd. AVhat other steps could you have taken or did you
take to ascertain whether in fact he did return to the Old Executive
Office Buildine I _,
Mr. Gr.\y. I don't know that we did take any other steps to ascer-
tain wliether or not he had returned.
Senator Byrd. ^Miv not ?
676
Mr. Gray. I don't know that during tlie course of the investigation
it came up. I know that we checked — it did come up to check, I recall,
it did come up to check his safe deposit box.
Senator Byrd. AYell, wouldn't it have been important to ascertain
whether or not he went back to the Old Executive Office Building fol-
lowing the Watergate break-in ? Wouldn't this have been quite impor-
tant ?
Mr. Gray. Well, yes, you can look at it now and say it would have
been quite important, but I would still say that you have to place
some kind of reliance on the security of the White House and the se-
curity afforded to Presidential papers,
I am not at all sure that we did this. I really do not know. I cannot
answer that question.
Senator Byrd. But here is a man who was involved in the Watergate
break-in, was suspected even on the daj' of the break-in. He had for-
merly worked at the White House. Why wouldn't it be important to
ascertain if he went back to the Old Executive Office Building that
night to say to someone, "Boys, we'd better get this out of here, we'd
better get that out of here, things have gone wrong." Why wouldn't
it have been important to try to determine if this might have
happened ?
Mr. Gray. It may have been done. 1 am just saying I don't know.
Senator Byrd. Would you check the records and see if it was done ?
]Mr. Gray. I think that would be in the Watergate files.
Senator Byrd. Did the FBI check the sign-in records of the EOB ?
Mr. Gray. I think that information would be in the investigative
file.
Senator Byrj^. That wouldn't be classified, just to give me a yes or no
answer, would it ?
Mr. (tray. Senator, I am not in a position to discuss those files, and
I am not going to discuss them.
Senator Byrd. Xow, before you started turning over the investiga-
tive reports to Mr. Dean, I am not clear — I was here part of the time
yesterday — I am not clear as to whether you did or did not ask for a
legal opinion with specific reference as to whether or not you could
turn those raw files over to Mr. Dean ?
Mr. Gray. Xo, I did not ask for a specific legal opinion regarding
the turning over of the investigative reports and the two volumes of
teletypes that I did turn over to Mr. Dean, No, I did not ask for a
legal opinion in connection with that.
Senator Byrd. ^Vliy would you ask for a legal opinion with respect
to a July 21 letterhead memorandum but not ask for a legal opinion
with respect to the much more sensitive, classified, undigested, raw
files which were l^eing requested by ]VIr. Dean ?
^Ir. Gray. I think that I previously testified. Senator Byrd, to the
effect that what I was tiying to do in the FBI from the time I arrived
was to get some of these dissemination procedures standardized. This
is one of the reasons why I asked for that opinion from the Office of
Legal Counsel. It had to do with material that we would put together,
that we woidd initiate, and that we would l^e forwarding.
Senator Byrd. Which do you consider, Mr. Gray, to be tlie more
sensitive, the LHM or the FD-302 ?
677
Mr. Grat. As I answered to a question yesterday, Senator, I re-
sponded tliat the letterhead memorandum represents a summary in
every case. We do the summary ^york. we sunnnarize it and present it
in the form of a letterliead memorandum. Obviously, the material in
the investig:ative file, the FD-302 and the teletype, is material that is
in much more detail.
Senator Byrd. And more sensitive, would you say ?
Mr. Gray. Not necessarily so, Senator Byrd. It depends in each case
as to what is in there.
Senator Byrd. You told us that the investie:ative files were sent di-
rectly to ^Ir. Dean rather than throuoh the Attorney General. I hope
I am not being repetitious. Could you tell us how tKis was physically
done ?
Mr. Gray. Yes, sir, I testified to that yesterday, too. This was an
actual delivery made by me personally to ^Ir. Dean by handing him
a briefcase containing the investigative reports on the first occasion.
Then on the second occasion, by handing a briefcase to Mr. Fielding
with the 10 investigative reports and the two volumes of teletypes
that were 31/2 to 4 inches thick.
Senator Byrd. Now, with respect to the October 10 submission, how
were these reports turned over to ]Mr. Dean ?
Mr. Gray. This was the October 12 one I think you are referring
to, sir.
Senator Bnm. Right.
]Mr. Gray. Those were picked up in my office by Mr. Fielding, as I
recollect. It was around 5 o'clock in the afternoon.
Senator Byrd. On October 12 ?
]\Ir. Gray. Yes, 12.
Senator Byrd. There were 10 of them ?
Mr. Gray. There were 10 investigative reports, FD-302's, and two
volumes of teletypes about 3i/^ to 4 inches thick.
Senator Byrd. I find nothing in the listing of telephone calls with
]\Ir. Dean concerning the October 12 submission of the reports.
]\Ir. Gray. That is correct, sir, you don't. I didn't give my full
testimony with regard to any of this for obvious reasons, because as
soon as this becomes an insert, it is going to be in the newspapers. I
wanted to reserve the right to testif}- in response to questions here to
give you the full story.
Senator Byrd. Why would you have in your insert indicated the
dates on which Mr. Dean requested July 21 LHM and the day on
which he requested the 82 investigative reports and not indicate on
the listing the date when Mr. Dean requested the reports delivered
to him on October 12 ?
Mr. Gray. For the reasons I have previously given. I wanted to
come here and testify and spell the answer out on the whole record.
Senator Byrd. In other words, we were going to have to ask you
]Mr. Gray. I was going to tell you because I knew somebody was
going to go down the list of these telephone calls and I would tell
you as I am telling vou now. Senator.
Senator Byrd. Why not put them all on there? That was supposed
to be a list in a response to a question asking for all the telephonic
communications, and you are saying now that in response to that
request, you supplied only a partial list.
678
]Mr. Gray. I am not sayino- that. I am saying that I did not specify
everything tliat occurred in each telephone conversation beside each
telephone notation. I tried to do it, and there is no way you can write
it without leaving- more questions unansv»-ered, and I prefer to testify
her(>.
Senator Byrd. When did ]Mr. Dean request these ?
jNIr. (iKAY. He lequested tliem in that telephone conversation of
October 12, 1072, at 3 p.m. of that date.
Senator Byrd. And they were submitted to him that day f
iilr. Gray. Yes, that afternoon.
That afternoon he told ]Mr. Fielding to come over to pick them up
in my office.
Senator Byrd. Are there otlu'i- dates involving telephonic commimi-
cations and appointments with ]\[r. Dean that were not placed on the
list but whicli you are waiting to divulge in this hearing?
Mr. Gray. Xo. sir. The content is what I am specifying I did not
spell out in complete detail.
Senator Byrd. When did the President appoint Mr, Dean to conduct
an internal investigation to see whether White House staff were in-
vohed in the Watergate break-in?
]Mr. Gray. It was my understanding that he was going to do that
from the very first day.
Senator Byrd. When did Mr. Dean first tell you that he had been
asked bv the President to conduct tliat inquiry ?
Mr. Gray\ He first told me in the very first telephone conversation I
had with him, sir.
Senator Byrd. Which was
Mv. Gray. Tliat was on the 21st day of June.
Senator Byrd. He told you on the 21st ? Do you sujvoose that because
of his sitting in on interviews, past or then Wliite House aides were
already suspect?
Mr. Gray. I'm sorry, sir, I missed that question.
Senator Byrd. He told you on the 21st that lie was to be asked by
the President to conduct that inquiry ; is that correct ?
Mr. ( iRAY. He told me he was going to conduct an inquiry and had
been designated by the President to do this.
Senator Byrd. By the way, are there any sanctions on individuals
who lie to the FBI in the course of intervieAvs ? \
^Ir. Gray. I don't know unless they are sworn, and I am not really
sure unless it is a sworn interview, making a false official statement.
Senator Byrd. I note that ]Mr. Bi-uce Kehrli. was interviev.-ed on the
19th of June and again on the 1-lth of August 1972. Why was he not
interviewed before the 1 Ith of August in view of the fact that he had
been asked by ^Ir. Dean to assist ^[r. Fielding late on the night of
June 10 in breaking on<m the safe and taking therefrom the possessions
of :\rr. Hunt ?
^[r. Gray. I cannot a^^swer that (|uestion specifically, but the answer
is in the investio-ative file, ^[y recollection on that August 14 inter-
view is that it grew out of grand jury testimony.
Seuf^.tor Byrd. But whv was he not interviewed on the 27th of June,
after Dean had turned Ifunfs properties over to the FBI ?
I p.ote Mr- Fred Fif^ldino- Avas interviewed on the 27th. Tliat would
]^^ve h^on the day following the turnover of :N[r. Hunt's possessions
to the FBI.
679
"Wliy ',A'as not 3.1r. Kelirli inter viewed on that date?
^h: Gray. ]\Ii-. Kinley is poijitino- out to me that we ha\e since deter-
nnned from a corrected list tiiat Mr. Kehrli was interviewed on the
•2(th day of June and the Ikli day of Anoust. and not the li)th dav of
June.
Senator Bvitn. Why was this not picked up at the time this listino-
was submitted to the committee {
Mr. Gray. The only reason I can ^eivc is that when we were checking
and havino: or. r skull sessions in an effort to make absolutely certain
we Avere delivei in.o- nccnrate information, this came up. We checked all
the index cards in these two boxes liere and came up with a corrected
L^st.
Senator _Byri>. In the course of those skull sessions and the subse-
(}uent studies, v.'ere any additional errors found in the listing that was
previously sulnnitted to the committee in this connection? You found
this one thing which you have not listed. Were there others? If so.
could you indicate what they vrere?
Mr. Gray. I do not know if there were others, but wh.at we would
like to do. Senator Byrd. is submit this list now to the committee.
Senator Byrd. Dowliat?
]Mr. Gray. Submit this list, the current co)i-ected list to the com-
mittee.
Senator Byrd. Fine, and this will be for all members to see ?
jNIr. Gray, The previous list was submitted as an insert to the record
«iid certainly I will submit tliis as an insert.
(The docmnen.t referred to follows:)
Name Position Dates contacted
Wiiits Hous? personnel: „^ ,„,„
James Goorge Baker Protective Security Division U.S. Secret June 29, 1972.
Service, supervisory security specialist.
Arthur W. Bauer Fiscal Service Officer, Office of Manage- August 10, 1972.
ment and Budget, Executive Office of
the President.
Margeret L. Beale Persinnel Office, Office of Management August7, 1972.
arid Budget, Executive Office of the
President.
Alex P Butterfield - Depjty Assistant to the President Junel7,1972.
John Campbell Staff Assistant, Office of Domestic Council. August 7, 1972.
John James Cauifieid Consultant to the Director of Treasury June25, 1972.
Law Enforcement.
DwighlL. Chapin Deputy Assistant to the President August 28, 1972, March 5, 1973.
Kathleen Ann Chenow Secretary to David Young July3 1972.
Charles W.Colson Special Coijnsel to the Presiaent June 22 25, August 29, 1972
John Wesley Dean III Legal Counsel to the President. -- June 22 2o, 27, 23, July 7, 8, Au-
gust 28, 1972.
JohnD. Ehrlichman Assistant to the President for Domestic Juiy21,1972.
Fred Fielding Assistant to the Legal Counsel to the June26, 27, August 30, 1972.
President.
W. Richard Howard Staff assistant ,----:,--- --- |?"2"^'| ,14,
Wilbur Jenkins Administrative oHicer, White House August7, 1372.
Bruce Kehrli Staff secretary to the President June 27, August 14, 1972.
William Rhatican.:.... Staff assistant September 28 1972.
JamesRoH^rs porsoniiel office, White House Office August 7, .972
Gordon Strachan.: Staff assistant at the White House August 23, 1972
William E. Timmons Assistant to the President for congres- Septembers, 19/2.
sional relations.
Alfred V>fong Special agent in charge, technical security June 22, 27, 1972.
U.S. Secret Service.
David Reginald Young Special staff assistant, National Security July 3, 7, August 30, 1972.
Council.
680
Name Position Dates contacted
Committee to reelect the president
personnel:
Stephen Tingley Anderson Security guard June 30. 1972 (twice).
Paul E. Barrick Treasurer, Finance Committee, CRP June 30 July 24, 1972.
Thomas Deveraux Bell... Assistant to Ken Reitz Nov. 3, 1972.
James William Bennett.. Security guard June 30, 1972.
Ronald Bruce Buchanan... Security guard July 12, 1972.
Monico Bungato Messenger, mail service June 26, 1972.
James E. Caudill Security man for Republican National July 25, 1972.
Committee.
James Edward Cooper. Security supervisor. June 30, 1972.
Lewis Vt/ebster Creel Security guard _ _ July 10, 13, 1972.
Connie K. Cudd Staff secretary.. _ July 6, 1972.
Jane Dannenhauer. Secretary... June 30, July 17, 1972.
Maureen C. Devlin Receptionist... June 30, 1972.
Yolanda Dorminy Secretary July 13, 17, 1972.
Martha Duncan Office manager June 30, July 3, 1972.
John W. Ernst. Security guard June 30, 1972.
Morgan Lee Elliott.. Security guard and chauffeur... Sept. 25, 1972.
Timothy Michael Flynn Security guard... June 30. 1972.
Peter Fokine Assistant of finance June 30, 1972.
Kristin Forsberg Personal secretary to Mrs. IViitchell June 30, 1972.
Carl Andre Foster... Chauffeur Oct. 12, 1972.
Laura Alice Frederick Personal secretary to Fred LaRue July 21, 1972.
Millicent (Penny) Macey Gleason.... Security officer June 17, 30, July 1, 2, 17,[18, 1972.
V. Elaine Hall. _. Special projects . June 30. 1972.
Mrs. Sally Harmony Secretary to G. Gordon Liddy.... June 30. 1972.
Judith Graham Hoback... Assistant to the Treasurer, Finance Com- June 23, 26, July 11, 18, 25, Aug.
mittee,CRP. 1,2,31,1972.
Peter Holmes Assistant to the Treasurer. June30. Julv 18, 1972.
George Roger Houston Security guard June 30, 1972.
Robert Houston Security supervisor. June 30, 1972.
Robert L. Houston Security coordinator June 20, 26, 27, July 3, 13, 17 ,1972.
Ronald Charles Howard Security guard July 12, 1972.
Margaret Kerwan.. Secretary June 30, 1972.
Stephen B. King Bodyguard for Mrs. Mitchell June 30. 1972.
Fred LaRue Special consultant to the campaign mana- July 18, 21, 1972.
ger.
Jeb Stuart Magruder. Deputy campaign director July 20. Auk. 11, 1972.
Robert Mardian Special assistant to the campaign mana- July 17, 1972.
ger.
Michael Terrence Masse. Security officer June 30, 1972.
Michael Miller Man in charge of victory dinner June 30, 1972.
Joseph Earl Ray Mills... Security guard. July 24. 1972.
John N. Mitchell.. Campaign director July 5. Oct. 3, 1972.
Powell A. Moore. Director of press and information July 24, 1972.
Lee Nunn Finance chairman. Finance Committee, June 23, July 13, 1972.
CRP
Paul L. O'Brien Cocounsel July 21. Aug. 11, 1972.
Robert C. Odle,Jr Director of administration June 19. 20, 23, 28, 29, July 11,
Oct. 12.1972.
Sylvia Panarites. Secretary . .... . July 3. 1972.
Kenneth Wells Parkinson Counsel July 21, 1972.
Charles Pashayan, Jr Vice-chairman on the Finance Committee. June 30, 1972.
Ann Pinkerton _. _. June 30, 1972.
Herbert Lloyd Porter Director of scheduling July 19, 1972.
Louis James Russell Investigator . . June 27, July 3, 1972.
Glen J. Sedam, Jr _ General counsel. June 23, 26, July 26, Aug. 11, 1972.
George Ellis Shanks. Security guard June 30, 1972.
DeVan L. Shumway Director of Public Affairs July 24, 1972.
Hugh Walter Sloan, Jr... Former Treasurer of the Finance Com- July 17, 18, 24, 1972.
mittee, CRP.
MauriceStans ..Chairman of the Finance Committee, July 5, 14, 28, 1972.
CRP.
Kenneth Taimage Aide to Maurice Stans June 30, 1972.
Florence Thompson. _ Secretary June 30, 1972.
Cary Longhorne Washburn June 30, 1972.
Tyloe Washburn Assistant to the Assistant Treasurer June 30, 1972.
Truman Jacob Weaver Security guard July 18, 1972.
Tom Wince Driver for Mrs. Mitchell ._ June 30, 1972.
Senator Bykd. Accordin2r to the Xe^Y York Times. March 20, the
Securities and Exchange Commission documents— that -were made
public by a Honse Subcommittee on ^larch 10 of the SEC vioLations
of security hiws by ITT officials — state that former Attorney General
Mitchell had talked to President Xixon about the merger cases. On
Tuesday. March 14, 1972, during the Kleindienst hearings. Mv.
jNIitchell stated on page 552, and I quote, "'but specifically with respect
I
I
I
681
to ITT or any other litigation, no, I have never talked to the Presi-
dent about it."
ISIr. Gray, to your knowledge has the FBI pursued this allegation
made by the SEC concerning Mr. Mitchell's participation in the ITT
case?
Mr. Gray. To my knowledge, no, sir. I do not have that knowledge.
Senator Byrd. Why wouldn't you ?
Mr. Gray. That matter was referred by the Committee on the Judici-
ary of the U.S. Senate to the Department, and Department attorney's
have been reviewing that record and have been specifying the areas of
investigation for the FBI.
Senator Byrd. The assignment was given to the FBI on December 5,
19T2, to investigate possible perjur}-. If these allegations made by the
Securities and Exchange Commission are true, should not the FBI
recommend to the Justice Department that they prefer perjury charges
against Mr. ]Mitchell ?
Mr. Gray. The FBI is not in that kind of position. Senator Byrd,
and I believe this is well recognized. We are an investigative agency
and we do not make these kinds of formal recommendations.
^^^lat occurs in the discussions between the senior officials of the
FBI and the attorneys in the Department of Justice is another matter.
I don't know that this is being said, at least it hasn't been said to me
that i should do something about this.
Senator Byrd. Why do you suppose that the FBI was not assigned
the investigation of possible perjury in the Kleindienst hearings until
December 5 — which is your testimony ?
Mr. Gray. I think there were a considerable number of volumes of
testimony sent over to the Department of Justice. The attorneys had
to review it very carefully and then decide on the type of investiga-
tion they wanted the Federal Bureau of Investigation to conduct.
Senator.
Senator Byrd. Mr. Gray, on February 28, you stated for the record,
in answer to a question by Senator Gurney, your account of the han-
dling of the skyjacking of the Southern Airways jaircraft whose tires
were shot out iii Orlando. Fla., on November 10, 1972.
At the time of the hijacking were you aware of the understanding
regarding termination of hijacked flights as set forth between the
Department of Justice and' Department of Transportation which
states in part :
The pilot in command has the responsibility to indicate whether or not he
desires the aircraft to be immobilized and hijacliing terminated by the force
necessary to terminate it. It is fully understood by the pilot, FBI and personnel
of the FAA it is the pilot's determination whether or not to give the signal.
The date of that memorandum is December 1971. I believe that
IDolicy is still in eilect today, is it not ?
Mr. Gray. If you are talking about the dej^artmental memorandum
between the Department of Justice and the Department of Transpor-
tation, yes, I am familiar with that. I am also familiar with the imple-
mentation of the policy in practice when a pilot is not a free agent
under extreme conditions, and this occurred in cases prior to the
Southern Airways hijacking.
Senator Byrd. We will get to that in a moment. But I am asking
you, is this memorandum still in effect ?
682
Mr. Gray. That memorandum, if it is the one between the Depart-
ment of Justice and the Department of Transportation, is still in
etfect, yes, sir.
Senator Byrd. In other words, the pilot in command has the res]3on-
sibility as to whether or not he desires the aircraft to be immobilized
and hijacking terminated by the degree of force necessary to termi-
nate it ?
Mr. Gray. Yes, but the implementation of that policy in practice
has been different, and I can testify to tliat because we looked into it.
I had discussions from the beginning when I came into the Federal
Bureau of Investigation with regard to this particular policy. Our
own policy is that where there is a threat to national security or in
circumstances of an extremely critical nature where prior consulta-
tion is impossible, we will act accordingly. I think that this is known
to the people in the industry.
Senator Byrd. Are you saying that the FBI has a policy separate,
different, and independent of the memorandum dated December 1971
between the Department of Justice and the Department of Transpor-
tation ?
Mr. Gray. Xo, sir; I am not saying that. I am just reminding my-
self that there is a civil action pending now with regard to a prior
incident that occurred in another State, and I just don't think I ought
to be testifying on this particular polic3^
I am just going to leave it, Senator Byrd, if T may. that the policy
in its implementation in practice in the field under existing conditions
is a bit different when tlie pilot is not a fi-ee agent. But we alwavs
confer with the company. I am trying to be helpful and tell you how
we do it when we are on the firing line, nor when we are reading and
drafting a piece of paper back in the safety of Washington.
Senator Byrd. Are you saying Capt. William K. Haas was not a free
agent on November 10, 1972, in control of his aircraft ?
Mr._ Gray. Every instance that we had of that type indicates that
one of those murderers, hijackers, was right at his head with a gun and
I don't knovr how you can be a free agent under those circunistances,
Senator Byrd.
Senator Byrd. Are you aware of the fact that Captain Haas dis-
putes that ?
Mr. Gray. I am aware of the fact that he does, and of course we
differ with him.
In fact. I have a letter which I have ali-eady introduced in the
record from a passenger — maybe I haven't introduced this letter into
the record.
Senator Byrd. Would you introduce it into the record ?
^Ir. Gray. Yes. sir.
He indicates that when the action was taken the attitude of the
hijackers changed completely and, in part, he writes as follows
Senator Byrd. How lengthy is the letter ?
Mr. Gray. It is not that lengthy.
Senator Bykd. Would you read it in its entirety if it isn't tc>o long?
Or read it in part, make whatever point you wish to make.
Mr. Gray. All right, sir. Maybe I wilfi-ead the whole letter. It is
addressed to me.
683
Dear Mr. Gray : I was on board the Southern Airways Flight No. 49 that was
hijacked last week. It was not until after returning to Miami that I learned
many of the details of the Federal Bureau of Investigation's efforts and the
important part played in bringing the flight to a happy conclusion. The passengers
and crew should be deeply grateful for the all-out effort that eventually met with
success.
The incident at Orlando which involved the shooting of the tires on the plane
resulted in a situation on board that caused much fear and concern among the
passengers as well as the crew. This action no doubt was the result of a very
dithcult decision on your part and a calctilated risk that could not be avoided.
I was, I believe, the closest passenger to the co-pilot during the resultant
shooting and certainly was closest to Henry at the time of the shooting and to
say that I was extremely concerned, being the possible second victim to be
selected to be shot would be an understatement.
Senator Bykd. Could I interrupt you there ? Who is Henry ?
Mr. Gray. Henry is one of the hijackers, sir.
Nevertheless, I feel quite certain, as yoti no doubt do, that the action that the
FBI personnel took based on a decision to immobilize the plane was a good de-
cision at the time and proved to be the primary factor that brought the flight
to a .successful conclusion.
It was after this incident that the hijackers' attitude changed. I feel they
began to recognize the futility of their efforts and were more concerned with
the prospects of their getting on the ground and out of the plane safely.
I shall always be grateful for the fine service the FBI performed in this
instance.
Sincerely,
Arthur Tonsmeire, Jr.
He is president of the Firet Federal Savings and Loan Associa-
tion. ]\Iobile. Ala. This letter is written on his letterhead, sir.
Senator Byrd. INIr. Gray. I would like ro read to you the testimony
by Captain Haas which appears on page 180 of the hearings before
the Subcommittee on Aviation of the Committee on Commerce, U.S.
Senate, January 1973 :
Captain Haas. I was able to communicate signals as they stated yesterday. I
was certainly able to tell them whether I wanted armed intervention or not and
I displayed no such signal.
Senator Canxox. Were you questioned from the ground V Were you consulted
as to whether you wanted armed intervention to try to terminate the flight?
Captain Haas. No, sir.
Senator Caxxon. That was never discussed with you at allV
Captain Haas. No. sir.
Senator Caxxon. Did yott have any advance knowledge that armed interven-
tion was going to take place to try to terminate the flight prior to havizig your
tires shot out?
Captain Haas. No, sir. I had no time to condition these people that this was
about to happen. As a matter of fact, I felt like on the ground at Orlando my
chance of getting the passengers off the airplane at Chattanooga had been
aborted by the great number of people that showed up at the airport, spectators
that continued to move in closer and closer to the airplane.
These i>eople felt that each person out there represented some sort of a se-
curity man with a telescopic rifle to pick him off if he stuck his head otit of the
window. I had thought that I was going to get the people off at Chattanooga. We
had already made arrangements to carry the apparent heart attack victim ofif
the rearsteps of the airplane and lay him beside the runway.
And this, of course, was borted by the ntimber of spectators that had gathered
by this time, as I said before, moving closer to the airplane.
Senator Caxxox. How close were the spectators at that time?
Captain Haas. Less than 100 yards, and quite a number of people.
Senator Byrd. So Captain Haas stated before a committee that he
was a free agent — this would indicate that he was indeed his own agent
at tlio time ?
684
Mr. Gray. I don't think we can conclude that on the basis of all the
information we had, Senator. The pilot either did not reply to requests
from those on duty at the airport near Key West where the plane
landed before proceeding on to Orlando or he replied with a curt yes
or no. On one occasion the pilot stated he could not answer any more
questions. We also had information from our interview of the copilot
that it was his opinion that the hijackers had no intention of releasing
any of the passengers or crew at any time. I think I previously testi-
lied, when I was responding to Senator Gurney's question, that my
special agent in charge of the special agents who were directly under
this hijacked aircraft at Orlando went to the fuel truck and tried to
determine whether or not there were a set of headphones there in order
to plug them in and talk to the pilot. There were no headphones on
tliat fuel truck. So I think on balance we made every etfort that could
be made to handle the situation in view of all of the other exigencies
that I have previously testified to, Senator.
Senator Byrd. Wlio made the decision to shoot out the tires?
jNIr. Gray. I did, sir.
Senator Byrd. You made the decision ?
Mr. Gray. Yes, sir, I did it.
Senator Byrd. Why did you make that decision to shoot out those
tires?
Mr. Gray. I had all of the information coming to me through a night
and through a day, and I had been anah'zing it and discussing it back
and forth with my senior people. Toward the end of Saturday — along
toward 8 o'clock in the evening and I recollect perhaps around 7 :30 —
I received a call from my command post in Washington in which I
was advised again that the company strongly recommended that this
flight not be permitted to take otf from Orlando. I analyzed the pros
and cons of what course of action had to be taken. I called back, and I
remember this very well, it was at 8 o'clock, I told the people to mark
the time, "I am giving orders to terminate this flight by shooting out
the tires."
Senator Byrd. Notwithstanding the letter of termination between
the FAA and the Department of Transportation that such action will
not be taken until the pilot so indicates ?
Mr. Gray. Tliat's right, and if that plane had taken off and dropped
in the ocean between Switzerland and Africa, I would have been se-
verely criticized. It is one of those situations you find yourself in, six
of one and half a dozen of the other.
Senator Bykd. Suppose the aircraft had not gotten off the ground
and had crashed on takeoff ?
Mr. Gray. I would be in the same situation •
Senator Byrd. Then what would you have relied on?
Mr. Gray. I couldn't have relied on anything. I would be in the
same situation I am today. It was one of those situations where the
best information available to us and all the tests that had been
conducted by the experts in the business indicated that aircraft, after
having had its tires shot out, was not supposed to be able to take off.
Senator Byrd. You gave this committee in response to a question
by Mr. Gurney several reasons why the flight had to be terminated,
among which were these : A very severe stress situation, not only from
the standpoint of equipment, but from personal fatigue, and further,
685
that the oil condition in the engines was becoming rather severe, and
in fact the pilot himself in landing at Key West stated over the sys-
tem that he would have to have oil, the engines would not continue to
function. Do you remember those statements today?
Mr. Gray. Yes, I do, because those were the facts that I was oper-
ating on.
There is no question about that. There was the crew fatigue, the
aircraft fatigue, the engine fatigue, the intention of the hijackers
demanding charts to Switzerland or Africa, that they were attempt-
ing to take this airplane that distance even knowing that the airplane
is not able to fly that distance.
Senator Btrd. The fuel truck went up to the plane, why didn't they
put oil in it ?
]\Ir. Gray. Several times tlie fuel trucks went up to the plane and
they were not able to get oil in. I don't remember in this specific case.
I think there was none added during the Key West sto]3 and none
added at Orlando. I don't remember the exact reason, but in one case
the fuel truck operator was so nervous he could not get fuel into the
engine.
Senator Byrd. Why didn't he put oil in ?
Mr. Gray. He dicln't. My recollection of the re]>ort is he was so
nervous he couldn't get the oil in. These people were not happy going
out to that hijacked aircraft.
Senator Byrd. Were you aware of the fact that there were no re-
pairs of this enijine in Cuba before it was flown back to Atlanta ?
Mr. Gray. I know that and I know it was reported there was a very,
verv low level of oil on board.
It was not a repair situation ; it was an oil situation. Senator.
Senator Byrd. But let's go to tliat oil situation a moment. There
were 8 quarts, even the hijackers recognized this. The plane starts at
16 quarts, that is full. The oil gage showed 8 quarts. They had been
up 29 hours. There was no indication of danger with respect to tem-
perature or pressure, which really are the things that count moreso
than the. amount of oil, as long as there was as much as 8 quarts in
that plane, the plane could have flown on up the east coast and picked
up some oil somewhere. He had plenty of oil to go for awhile.
There was no critical situation concerning oil temperature or_ pres-
sure. You made the statement that the oil was too low. That is not
what the pilot said.
Mr. Gray. I was informed by the chief pilot of the company. I
didn't make tlie decision the oil was too low. It was one of the bits
and pieces of information I used in reaching my decision.
Senator Byrd. Let me eive vou the reaction of the pilot. I talked
with the pilot last night. Capt.'William R. Haas in La Grange, Tenn.,
with respect to your having said that the truck was located, I
believe — — -
Mr. Gray. Off the starboard beam and about 50 yards out; yes,
sir.
Senator Byrd. The pilot didn't say this. He said tlie truck was for-
ward of the aircraft. The copilot— I also contacted him last night. He
lives in College City, Ark. He happens to be the mayor of that town,
population of 645 people. Mayor Johnson, who was the copilot, had
been flying with Southern Airways since 1965, and he could see the
91-331—73 44
686
truck outside his window. He said the truck after an inordinately long-
dehay finally showed up at the aircraft, and then came up to the side
of the plane, and put in some fuel. There was never any indication on
the oil o-age that oil was put in. Although the pilot had been promised
that oil would be put into the plane at Orlando, no oil was put in it.
The copilot stated that the oil truck was there a long time, and then
when no oil showed up on the gage, the truck having delayed a long
time in its coming to the plane, and with the oil truck having delayed
a long time in i)utting in fuel, the hijackers became suspicious.
The pilot stated that the truck was forward of the aircraft at about
a 45 degree angle on the right side. He said, "I could have blown out
the tires." He said he could have done that himself.
I indicated to him that you had stated, I believe, that you had flown
up from Atlanta on a National Airlines plane the day before 3^ou ap-
peared here in the hearings
Mr. Gray. That is correct, sir.
Senator Byrd. And the pilot had told you that any time you ever
needed him to come and get him?
iSIr. Gray. Anytime, and there was a United Airlines pilot, too,
who said if I found them in a similar situation come and get them.
Senator Byrd. By the way, I thought you flew only on an Air Force
plane?
Mr. Gray. No, I said there were occasions when I did do that.
Senator Byrd. Well, in any event. I talked with a representative of
the Airline Pilots Association about the conversation of last evening.
He said they had been trying to find out who this pilot was who made
that statement. "Will you identify him?
Mr. Gray. No, sir, I will not identify him.
Senator Byrd. Does this come within the
Mr. Gray. No, sir, it does not. It is a man's right to privacy at stake
and I do not think it is relevant nor germane. I am trying to be as help-
ful as I can and I will leave it at that. I don't want to disclose that
man's name.
Senator Byrd. The representative of the ALPA indicated there are
81,000 pilots who don't agree with that pilot — who don't agree with
him at all.
Now, Mr. Gray, the captain says your facts are inaccurate. I quote
him. "He" — meaning you — "didn't even know where the gas truck:
was."
Now, with respect to how docile and subdued the hijackers became
after shooting out the tires, this is what he said : "They were so docile
that they shot my copilot and threatened to start killing all the
passengere."
Those were his words. The copilot indicated, "It was only after the
shooting I was attacked, and the hijackers went wild."
I asked the captain about the fatigue aspect. He said, "Well, who
is to know how fatigued I was after having flown 20 hours, why not
25 hours, why not 20 hours? At what point would someone in his
home hundreds of miles away determine that I was too fatigaied to fly
that aircraft?"
There was really no serious engine trouble, and I also brought up the
matter about the plane's possibly flying to Switzerland. He said. "We
mirrht have jrone somewhere else." He said, "There were a lot of desti-
687
nations that these hijackers had picked out, but we changed their
minds. Perhaps we would have changed their minds on this one. He
indicated this plane could have flown to Switzerland. He indicated the
plane could have flown up the east coast, could have made two or three
stops for fuel, cross Gander, over to Europe, if that was the way it
had to be. This could have been done. He has had 14 3-ears of flying
with Southern Airways. He said that he was ''in the midst of negotia-
tions with these hijackers at Orlando."
Ho felt that Orlando was the best spot and the last chance to get
the passengers off. He said, "We had told them that we had complied
with their instructions, that the ransom was on board," and he said,
"with a little more time and with no intervention" he thought he
could have gotten the passengers off' at Orlando.
I talked with the copilot. Mayor Billie Harold Johnson, College
City, Ark. He said, "We stopped at Orlando, We shut down the right
engine to add oil. We stayed long enough. We couldn't see by the gage
that any oil was added." I quote his words : "They went crazy after
the tires were shot out."
As to the location of the gas truck, he said it was "favoring the
front rather than the back." He said they heard guns, they felt the
plane settling, and then, quote, "The hijackers became enraged,
ordered me out of the seat." He said the jump seat was down, and he
said, "I had to crawl over the jump seat," and he said, "Two of the
hijackers dragged me and dragged me over that jump seat and pushed
me to about the third row back."' He said, "I sat down with the passen-
ger." He said, "One hijacker then went to the copilot's window and
fired out and one fired out the pilot's window." He said he was asked
to stand up by one of the hijackers, who said that "I had double-
crossed them." He said, "I w-as accused of having doublecrossed the
hijackers. They thought I had given the signal to shoot out the tires,
because I had done the talking over the radio prior to landing.'' He
said, "The hijacker was going to shoot my eye out." He said, "I dived
between the seats and got shot in my arm." He said. "The bullet went
through the seat back and the tray table, "else it probably would have
ended up in my chest." He said, "About the same time this was going
on, the captain in the cockpit was preparing to get the aircraft off' the
ground. He asked, 'AMiat's going on back there,' when he'd heard the
shot, and the hijacker told him the copilot had been shot. The pilot
said, 'Is he dead?' The hijacker said, 'No, they shot him in the arm.'
The pilot said, 'Get him up here, I have to have him to assist me in get-
ting this off' the ground.' " In the meantime, the hijacker who had shot
the copilot told him to get up off' the floor, he was going to kill him.
Just then the hijacker came back from the cockpit and said the pilot
needed the copilot in the cockpit. The copilot was brought back to the
cockpit. He said he didn't get his seatbelt fastened until after takeoff".
He said the FBI action "definitely provoked the shooting." He said, ''I
am not able yet to pilot a plane. The doctor has not released me yet.
I won't be released until the 1st of May." He said, "There was plenty
of oil." He said that even the hijackers recognized this. He said, "We
could have gotten oil up the east coast. We could have flown for
several hours. The temperatures were still looking good.'' He said,
"They had told us we could go this route," meaning up the east coast,
Newfoundland, Iceland, and so forth. "There was no indication of any
immediate problem ; no engine problem.''
688
As to having flown the aircraft 29 hours, the pilot indicated to me
that they could have gone longer. He said, "The adrenalin was flow-
ing.;' He said, "I didn't want to sleep." He said— this is the copilot
talking— "Had we gotten oil promptly, we probably could have gotten
the passengers off. We didn't get the cooperation promised. We were
told cooperation would be prompt and charts would be provided,
but there was an apparent stall. The fuel truck was slow. He put
kerosene m and no oil." The pilot indicated that following the shooting
out of the tires is when "things went haywire." "The hijackers went
crazy. The copilot was shot and the hijackers threatened to kill all
of my passengers." The copilot stated that prior to the shooting out
of the tires, they were getting along very well with the hijackers,
calling them by their first names. The hijackers in the meantime had
drunl: up all the liquor on the aircraft.
The copilot said that the hijackers even brought some of the money
up and offered to divide it up with the pilot and the copilot.
The hijackers appeared to be more interested in the city of Detroit's
paying the ransom than in seeing Southern Aii-ways pay the ransom.
The pilots tried to verify how much money was put on board — $10
million was expected. The copilot inquired via the radio how much
money was on board. They were told $10 million was on the aircraft,
$0 million having been given by the city of Detroit, $1 million bv
Southern Airways — whereas in truth only $2 million was on board.
While the stewardesses were counting the money, the hijackers came
up and said, "Fellows, we are not so interested in ransom from South-
ern Airways, it is Detroit, and as far as we are concerned. Southern
Airways can have their money back, you guys take some of this money,
we don't care what you do with it." And the copilot said he stashed
away several bundles of bills over near him and the pilot stashed awav
several bundles of bills over near him, and they oj^ened up some kind
of compartment in the floorboard and poured the remaining bills
down in that area. "Castro's men got it all," he said.
All this seemed to indicate exactly what he said, that thev were get-
ting along all right and were making progress in negotiations with
these hijackers, and it was only after the shooting out of the tires
that the hijackers "went crazy," "Avent wild."
These are the words of the captain and the copilot. These statements
have been substantiated by Mr. O'Donnell, the ])resident of the Air-
lines Pilot Association; also substantiated bv the counsel of that asso-
ciation— all of which would appear to indir-ate. Mr. Gray, that your
statement of events and circumstnnces which led up to this situation
was entirely at odds with what the circumstances were, as related by
these men.
Mr. Gray. It would appear to indicate that as vou have recounted
it. but there are a frrent many details on the tapes that would indicate
otherwise. Certainly the reports that we were recei vino; from the com-
pany indicated the need for oil, and in fact the pilot himself radioed
prior to Key West thnt he needed oil in both engines.
There were different facts on which we were operating, thnn what
Captain Haas and Captain Johnson have told vou. Captain Johnson
told us in his interview that, in his opinion, the hiiackers had no in-
tention of relensino- anv of the passenoers or the crew j^t anv time. He
also said that the hijackers were relatively calm when the plane Avas in
689
the air. but each time they were on the oround they became extremely
nervous, and it was his hnpression tlnit thev felt that some kind of
intervention was going- to take place. But on the basis of all the in-
formation available to me, and the request of the company that this
flight not be permitted to leave the ground at Orlando, I made the
decision to take the action that was taken, Senator.
The Chairmax. Weren't they afraid, as I understand it, that thev
would crash that plane in the city of Detroit and kill a lot of people"?
Mr. Gray. I think at earlier stages, Mr. Chairman, there were
threats made to crash it in Oak Ridge.
The Chatrmax. Oak Eidge and Detroit, and wasn't that the reason
that Detroit put this money up ?
yW. Gray. T don't recall the Detroit part of it, Mr. Chairman. I do
recall the Oak Ridge part, though.
Senator Byrd. Apparently, Mr. Gray, you didn't really have all
the facts.
Mr. Gray. I think we had all the facts that were available. The pilot
wasn't doing all this talking over the FDA circuits. We had the facts
coming over the circuits available to us. and I previously testified that
his answers were a'enerallv ves or no, and he wasn't doing too much
talking on that circuit at all.
Senator Byrd. As you are aware. ]Mr. Gray, hijackers can take a
course in hijacking by simply reading some of these hearings if cer-
tain information is divulged therein.
Mr, (tray. That is correct, sir. I know that, and I am trying to guard
my answers with regard to it.
Senator Byrd. You and I both know what we have reference to here.
"Why shouldn't that information which you have just alluded to have
indicated to you that the facts were not necessarily as they may have
seemed ?
Mr. GiLiY. Xo, I would not say that at all. It was a question of one
person reading a set of facts and other persons reading a set of facts
and having a diffei-ent opinion of them.
I don't think we can say they indicate different facts. It is the in-
terpretation they would place on those facts and the reaction they
would have to them. Senator.
Senator Byrd. Mr. Gray, I am constrained to say that on the basis of
the testimony that was given by Captain Haas and by Mr. O'Donnell
and by Mr. Gross, vice president of Southern Airways, to subcommit-
tees in both Houses of the Congress — and keeping in mind that all
things are not as they seem, you know what I am talking about, we are
trj'ing to protect people against future hijackers when I phrase my
words that way, all things are not as they seem by prearrangement —
as Actino- Director of the FBI, you made a decision which should have
been made by the pilot because the pilot can only make the decision.
Why ? He can communicate. He is the person who knows the facts.
Hj virtue of these things, we have to speak in riddles about this to
some extent, and you know why, but that pilot knows what the facts
are in his situation. According to the memorandum of understanding,
he is the person who should make the decision as to when the flight is
to be aborted.
So, with all due respect to vou, the pilot thinks you made a bad judg-
ment; 31,000 pilots in ALPA think you made a bad judgment. Thank
690
God that ]3lane didn't have 75 passenofers on it. It was only about a
thirfl of a full load, and that pilot was able to get it off the ground with
fiat tires; or else there would have been a holocaust. Captain Haas has
a wife and family for whom the story would have been different. Cap-
tain Haas wouldn't have been around, to question your decision.
JsLv. Gray. I would say, Senator Byrd, that I think I made the cor-
rect decision under the circumstances, the facts and circumstances
existing at the time. Both the company and the FBI very, very care-
fully considered and thought very long and hard, and I did, too, before
I made that decision, because our prime criterion is the safety of
human life.
Senator Byrd. So is the captain's.
Mr. Gray. I realize that, sir.
Senator Byrd. And it is his ox that is being gored; it is his life
that is also in the balance.
Now, do you have a record of the interview with Captain Haas
to which you referred a moment ago, that you could submit to this
committee ?
Mr. Gray. No, sir, I am not going to submit that interview because
that was during the course of talking with us and it bears that stamp
again of being part of an FBI file. I am going to respectfully decline
to provide that to the committee.
Senator Byrd. I thought the new policy was only with respect to
files that had some bearing on the Watergate, some bearing on Mr.
Dean, et cetera, et cetera. Are we to understand that you will not
submit to the connnittee a recorded interview with Capt. William
Haas?
]Mr. Gray. Senator, I think I answered this question a little earlier
by saying this is not a new policy. I am falling back on the traditional
policies of the Department of Justice with regard to FBI files. I am
placed back in the same framework I was in before I made the
unprecedented offer in connection with the Watergate case.
Senator Byrd. I have one final question.
Would you ask the Attorney General whether or not this recorded
interview — it was recorded, I assume — with Capt. AVilliam E. Haas
would fall within the new policy or whether or not it could be sub-
mitted for the record of the committee, and if you get that approval
w^ould you submit it ?
]Mr. Gray. Senator Bvrd. I have a feeling: that this ought to be a
request that is made to the Attorney General by the committee. I can
convey this to him, but I think he is going to want a formal request
from the committee.
Senator Byrd. Well, you are his agent as of now before this com-
mittee. It is your confirmation that is being judged.
]Mr. Gray. That is correct, sir.
Senator Byrd. You are the one who has been carrying out the
policy here. Why would you not want to ask him?
]Mr, Gray. Well, I think that I am going to be responsive. I am
going to receive it when the request is made in writing b}^ the com-
mittee, and I will consider it because that is the Department policy
and has been the Department policy over a period of time.
Senator Byrd. Do you suppose the committee could subpena that
intervieAV ?
691
Mr. Gray. I don't know, sir.
Senator Byrd. Well, Mr. Gray, I haA^e completed my questioning with
respect to this hearing.
I have always been a strong supporter of the FBI. I made law and
order speeches, to my recollection, before President Nixon started
making them. Several weeks ago, I stated my position with respect to
your nomination, and I stated my reasons therefor. My conclusions have
only been substantiated by the developments that have occurred in
the course of the hearings. To be specific, they are as follows, as I see
them :
One: As Acting Director, you made speeches which you yourself
have, during the hearings, admitted were political in the eves of others ;
you accepted an invitation, at the request of the White House, to make
a speech in Cleveland, Ohio, a State which was considered vital to the
Republican campaign: although you earlier testified that, prior to the
White House request, you had received a formal invitation directly
from the Cleveland Club, you later stated tliat this was not the case and
that the White House invitation antedated any formal invitation from
Cleveland.
Two: The FBI, again at the request of the 'AVliite House, secured
information from 21 field offices in 14 States to be used in support of
the Presidential campaign, such request for information having gone
out over your name — and, although you earlier left the impression with
the Judiciary Committee that you had launched an investigation into
the matter, you subsequently revealed that such investigation had
really not been instigated until the storv broke in the press several
weeks after the political act occurred, and the evidence shows that the
investigation really was not pursued vigorously and produced little,
if any, results.
Three : What started out initially to be a "full court press" investiga-
tion soon was reduced to an investigation only with respect to the IOC
statute; possible violations of other statutes were not pursued, the
pretext being that tliere were no indications of other violations, and
that the FBI was not requested to go beyond the IOC statute by the
Attorney General's office.
Four : Serious questions have been raised about the decision of the
FBI's Actino- Director to shoot out the tires of the Southern Airways
aircraft on November 10, 1972 : additionally, the statements under oath
by the Acting Director are completely at odds with statements by the
captain of that aircraft and by the president of the Air Line Pilots
Association.
Five : The repeated absences from Washington at critical times by
the FBI Acting Director — for example, during the Southern Airways
skyjacking; and often durina' ^^h.e Watergate investigation, an investi-
gation which the Acting Director himself recognized initially as an
extremely serious matter, one which had every indication of involving
people in high positions in the administration.
Six: A handling of the Watergate investigation which has raised
serious; questions regarding its thoroughness, independence, and
obiectivity.
Seven: Failure on the part of the FBI Acting Director to demon-
strate independence in dealing with John Dean, Counsel to the Presi-
dent, and arrepting at face value and almost without question the
statements, directions, and requests of John Dean, all of which indicate
692
a pattern either of blind loyalty, faith, and trust in, or subservience to,
the White House. Specific examples can be cited :
(a) Transmission of the July 21 letterhead memorandum to John
Dean.
(b) Transmission of 82 investigative reports (raw files) directly to
John Dean, at Dean's request, without authorization by the Attoi-ney
General and apparently without knowledge of others in the FBI.
(c) Allowing, without protest, John Dean to sit in on interviews of
White House personnel.
{d) Supplying John Dean with investigative reports of reinterviews
of certain personnel of the Committee for the Re-Election of the Presi-
dent, such reinterviews having been made at the request of the CRP
personnel who wanted to be interviewed out of the presence of CRP
attorneys.
(e) Accepting, without question, the response of John Dean to the
inquiry of the FBI Acting Director regarding whether or not Dean
had shown Donald Segretti certain FBI files as implied in press
reports.
(/) Trusting implicitly in, and justifying his actions upon, a "pre-
sumption of regularity," the FBI Acting Director repeatedly turned
over raw files to John Dean and failed to ask Dean questions where
questions logically should have been asked regarding the use of those
fides and regarding leaks of information, et cetera.
(g) Dean's recommendation of Gordon Liddy to CRP and Liddy's
later involvement in the Watergate raid created no apparent concern
on the part of the FBI Acting Director Avith regard to Dean's being
entrusted with raw FBI files.
(h) Although Dean had Mr. Howard Hunt's property removed
from Hunt's office on the night of June 19, 19T2, and stored it in his
own office until he turned it over to the FBI 6 days later, the FBI
Acting Director saw no reason to seriously question Dean's actions,
even though Hunt proved to be involved in the Watergate break-in,
and even though Dean knew at the time the property was stored in his
office that Hunt was being investigated b}^ the FBI, and even though
Dean, during those 6 days, failed to inform the FBI of vdiat had trans-
pired, notwithstanding the fact that Dean talked by telephone six
times with the FBI Acting Director and met with the FBI Acting
Director on two separate occasions in the latter's office during the 6
days Dean was in possession of Hunt's property.
(^) During the Kleindienst hearings, Mr, Gray turned over to John
Dean the famous Dita Beard memorandum which had been entrusted
to the FBI by the Judiciary Committee under orders tliat it not leave
the possession of the FBI. The Beard memorandum subsequently went
to the ITT before being returned to the FBI and the Judiciary Com-
mittee. Notwithstanding this experience, FBI Acting Director Gray
demonstrated an implicit faith in John Dean in turnin.o; over to hirii
all FBI raw files requested by Dean with respect to the Watergate
break-in. Here again, Mr. Gray acted, in his words, on the "presump-
tion of regularity."
Eight : FBI Acting Director repeatedly stated during the hearings,
and as recently as yesterday, that he would continue to turn over FBI
raw materials to John Dean as requested. The supplying of FBI raw
files to Mr. Dean has continued without questions being raised by Gray
693
even subsequent to August 29, 1972, the date on which President Nixon
stated in a press conference in San Clemente, Calif., that "Within our
own staff, under my direction, Counsel to the President, Mr, Dean, has
conducted a complete investigation of all leads which might involve
any present members of the White Plouse staff or anybody in the Gov-
ernment." (Emphasis supplied.)
Nine : Even though Mr, Gray sought a legal opinion before supply-
ing Mr. Dean with the July 21 letterhead memorandum, INIr. Gray
sought no legal opinion whatsoever in following up repeatedly with
supplying FBI raw files (FD302's, interview reports, teletype infor-
mation, et cetera) which were even more sensitive than an LHM.
Ten : FBI Acting Director Gray sought no request orally or in writ-
ing from the President before supplying jMr. Dean with letterhead
memorandums and FBI raw files, ancl has continued to send raw files
to Mr. Dean as late as October 12, 1972, on the "assumption" that the
White House investigation is "continuing."
Eleven : Submissions of raw files to White House echelon personnel,
even those FBI reports regarding private reinterviews made at the
request of CEP personnel, have seriously compromised the "presump-
tion of confidentiality" which heretofore has been applied with respect
to information given to the FBI by informants.
Twelve : In view of the exorbitant claim of executive privilege that
has been advanced to deny a formal appearance by Mr. John Dean
before the Judiciary Committee to answer questions bearing upon
the qualifications of Mr. Gray, I believe that the Senate committee
should reject the nomination.
Thirteen : Although I have nothing personal against the FBI Act-
ing Director and could possibly vote to confirm his nomination for
some other office, I cannot vote to confirm his nomination for the
office of Director of the FBI. I think that the image of the FBI has
suffered, in view of all the developments which occurred during his
acting directorship, and I think that the professionalism, morale, and
efficiency of the FBI have likewise suffered, as has public confidence in
the FBI. There is too much evidence of political activity on the part
of the Acting Director ; there is too much evidence of subservience to
the White House; there are too many unanswered questions with
respect to the possible misuse of FBI files in connection with the
Watergate investigation — all of these, together with the foregoing
detailed reasons, are sufficient to justify a fear that the FBI could,
in the future, become a White House national police force to be used
in political campaigns, thus endangering the constitutional liberties of
all Americans.
For the foregoing reasons, I would now hope to see an up or down
vote on the nomination of ]Mr. Gray. I think he is entitled to an up or
down vote, but more than he, the FBI is entitled to an immediate
decision in this matter, and I believe that for the good interests of the
FBI, as the top laAv enforcement agency and intelligence-gathering
network in this country and the free world, the nomination ought to be
reiected.
I speak with all deference to you, Mr. Gray, and most respectfully
when I sav again that it might be quite possible for me to vote for your
nomination for another office. I cannot vote for the present nomniation
before the Judiciary Committee.
694
Do you wish to respond ?
Mr. Gray. Yes, if I may, Senator Byrd. As I told you Avhen I met
with you in your office, I understood and appreciated your position,
and I said at that time that I hoped that I might be able to persuade
the Senator to change his mind. All I can say to you on this occasion
is that I understand the reasons for 3'our statement, and I regret that
I have not been able to persuade you.
Thank you very much.
Senator Byrd. Thank you, ]Mr. Chairman.
Senator Hart. The chairman indicated that we would recess until
2 :30.
[Whereupon, at 12:50 p.m., the subcommittee was recessed, to re-
convene at 2 :oO p.m., the same day.]
AFTERNOON SESSION
The Chairman. The committee will come to order.
Senator Tunney.
Senator Tunney. Mr. Gray, Senator Kennedy was asking you yes-
terday about the scope of the investigation the FBI is conducting into
possible perjury in connection with the ITT Kleindienst hearings
which Avere held last year.
As you know, the record was referred by this committee to the Jus-
tice Department last summer with the request that a report be made to
the committee in 30 days. The Justice Department wrote the chairman
and requested an extension of time.
You have testified that the record was not referred to the FBI until
December 5, and that you have only a few more interviews to com-
plete. You have also said that both Mr. Kleindienst and Mr. Petersen
have disqualified themselves from working on the matter since they
were both involved in the ITT hearing. Does that represent a correct
summary of the facts ?
]Mr. Gray. Yes, sir, I think that does.
Senator Tunney. You were involved in the ITT hearings, also, as
the person in the Justice Department who, after mid-March, made de-
cisions about which documents were to be made available to the com-
mittee. Have you disqualified yourself in making decisions respecting
the investigation ?
Mr. Gray. No, sir, I have not. I think I answered this question for
Senator Kennedy when he asked me. I think this, once again, goes to a
full understanding of the participation of the Acting Director in an
investigation and when decisions come up to my level. But normally
the modus operandi within the Federal Bureau of Investigation is to
have the case work its way with the trained investigators and with the
field supervisors and the SAC's and the assistant directors doing it.
Then the type of question comes up, I think- 1 cited several examples
here where recommendations were made to me with regard to inter-
views.
This case is being actually scoped out for us by memorandums from
the Department, and, you know, we give our reports to them and get
additional memorandums. This is the way that case is being worked.
Senator Tunney. So you are not making any decisions with respect
to how, M'here, when, and why these are to be conducted ?
695
Mr. Gray. Yes, sir, I would say I have not done so yet. The situation
has not been presented to me where I as Acting Director have to make
a decision, but that could occur.
Senator Tuxxey. Do you feel that you ought to disqualify yourself ?
]\Ir. Gray. I don't think I should. I said this to Senator Kennedy.
I know it might be an easy thing for me to saj^, "Yes, Senator Tun-
ney, I'm disqualifying myself" and perhaps take a lot of heat off jiiy
back. But I think, sitting in the chair where I sit, I have the duty to
try to resolve it and when it reaches the point where I cannot, then I
have to make the other decision.
Senator Tunxey. As to whether or not you ought to disqualify
yourself on specific decisions as it relates to the investigation of pos-
sible perjury?
Mr. Gray. That is correct, sir.
Senator Tuxxey. And you made that decision when you had to,
when it was the kind of issue framed that you felt that there might
bo conflict of interest ?
Mr. Gray. I have a hard time trj'ing to see how this will come up,
because we deal primarily with information reported to us. It may or
may not be fact, but at least it is information. We transmit this data
to the Department of Justice attorneys who make the legal decisions
as to what to do from there.
Senator Tuxxey. AVell. I was thinking of the possibility of the de-
cision as to which witnesses ought to be interviewed. As an example,
I can see where there could be a tough clecision that would require the
Director to decide definitively whether a person ought to be inter-
viewed by the FBI or whether he should not be.
]Mr. Gray. Generally, these individuals are set out in the investi-
gation scoped out for us by the Department, and when our return
reports are made then otlier memorandums come.
Now. it is conceivable that in those reports there may be leads de-
veloped by the De]:)artment of Justice itself and they give us anotlier
memorandum, and it is also conceivable that our iieople would recom-
mend these. You know, it is not going to be a situation where I am
going to sit up there and say no.
Senator Tuxxey. ^V^lo is making the decision in the Department ?
Mr. Gray. I am testifying now from memory, and I believe it to
be — I think this man is the senior Deputy Assistant Attorney Gen-
eral in the Criminal Division. Mr. Shapiro.
Senator Tuxxey. When did Mr. Kleindienst and Mr. Petersen dis-
qualify themselves ?
Mr. Gray. I don't know, sir.
Senator Tuxxey. But you do know that they have disqualified
themselves ?
'My. Gray. Yes, sir.
Senator Tuxxey. "\"\nien the record was referred to you on Decem-
ber 5. do vou recall who signed the referral memo? Was it Mr. Klein-
dienst or Mr. Petersen ?
Mr. Gray. Xo, sir, the initials on it are "KEE" and the memo is from
Ralph E. Erickson, Deputy Attorney General.
Senator Tuxxey. And "would that be normal, a normal procedure,
if Mr. Kleindienst and Mr. Petersen have disqualified themselves, for
it to be from Mr. Erickson ?
696
Mr. Grat. I believe that would be a normal procedure, because he
•would be acting for the Department.
vSenator Tuxney. Do you have any knowledge as to why Mr. Shapiro
did not sign it ?
Mr. Gray. No, sir, I do not.
Senator Tunney. When the record was referred to you, what were
you asked to do, if you could tell us ?
Mr. Gray. Senator Tunney, I would respectfully decline to answer
because this is an on-o-oino- investigation and I Avould adhere to the
traditional rules and regulations and policies of the Depai'tment.
Senator Tunney. Can you supply the referral memo for the record ?
Mr. Gray. No, Senator, I would respectfully decline, sir.
Senator Tunney. Well, if you cannot supply it, can you comment
on the impression that I get from your testimony that you were di-
rected to conduct interviews of certain people whose names were
specified in the referral memo ; is that an accurate estimate ?
Mr. Gray. That was initially, and it goes on from there as this
investigation begins to develop.
Senator Tunney. I understand from what you supplied for the
record last week that you have only four more interviews to go ?
Mr. Gray. That was so at that time, but that does not mean that
as a result of the information from those interviews being turned
in Ave Avon't be directed into other areas.
Senator Tunney. Can you indicate to the committee what other
things besides intervicAvs that you are doing ?
]Mr. Gray. I would respectfully decline, Senator Tunney.
Senator Tt^nney. Can you tell us whom you have been interviewing ?
Mr. Gray. No, sir, I would respectfully decline. Senator.
Senator Titnney. In an article in today's Chicago Sun Times it says
that the FBI has not contacted the folloAving : Mr. Geneen, Mr. Aibel,
;Mr. Reinecke, Mr. Hunt, Mr. Brit Hume, Mi\ HoAvard Hunt, and Mr.
Hugh Sloan. It also says that Mr. John Mitchell and Mr. Petersen
Avon't say whether they have been intervicAved.
The only people we knoAv haA^e been intervicAved are some officials
of ITT's Washington office, Mr. Ryan, Mr. Goodrich, and Mr. Horner.
Inasmuch as the gentlemen which this article says have not been inter-
A'icAved were the principals or among the principals involved in the
ITT hearing, ancl as there Avere inherent inconsistencies under oath
from a number of these people, which Avould seem to indicate that
somebody was lying, it is hard for me to believe how this investigation
could be pretty Avell Avrapped up without these people being
inteiwiewed.
Mr. Gray. I don't think. Senator Tunney, that we should conclude
that it is pretty well wrapped up. As information is deA'elopecl, there
is more direction and guidance probably going to be given. But this,
you know, is a subject that I i-eally cannot discuss.
Senator Tunney. The reason that I mention it is because it is my
understanding from your testimony earlier that you only had four
more intervicAvs to conduct, and I haA^e mentioned Geneen, Aibel, Brit
Hume, Ryan, HoAvard Hunt, Hugh Sloan, Horner, and possibly Peter
Petersen. We are up to eight people Avho Avere principals and Avho have
not been interviewed. It would seem to me that just insofar as the
interview portion is concerned, you have a long Avay to go and you
697
have been at it for quite some time, since December 5. 1 wonder if you
have any comments to make on that ?
Mr. Gray. No, sir, I don't have any comments other than to say we
are taking- it step by step by step.
Senator Tunnet. Mr. Shapiro is apparently directing- the investi-
gation. Do you feel that this is the way the FBI should be investigat-
ing a matter of this kind, taking such specific instructions from the
Department of Justice ? Or should the FBI be able to do a full court
press and conduct the kind of investigation that it feels ought to be
conducted ?
Mr. Gray. No ; I feel in this case, Senator Tunney, this rej)ort was
referred to the Department by the Committee on the Judiciary of the
U.S. Senate and that we are takhig our instructions from the Depart-
ment. We are making our reports to the Department and we are re-
porting everything that we develop to the attorneys there who are
making the decisions.
Senator Tunney. Can you explain why it would not be necessary
to interview, for instance, Mr. Harold Geneen or Mr. Aibel, who were
two principals involved? Mr. Geneen particularly, I recall, had testi-
mony under oath that was in conflict with the testimony under oath
of another witness.
Mr. Gray. No, sir, because to answer that question I have to go back
and review that file, the wdiole transcript, like the attorneys are doing
in the Department of Justice.
Senator Tunney. Have your investigations or interviews turned up
substantial new leads?
Mr. Gray. Senator Tunney, I must respectfully decline to answer
that because that is a question I am not permitted to answer under the
rules and regulations.
Senator Tunney. Can you answer this : Has the Justice Department
directed you not to interview these ? Can you tell us that ?
Mr. Gray. I have no recollection of any directions not to do
something.
Senator Tunney. On the other hand, you cannot run the type of
investigation that would be in any way outside specific instructions
that you get from the Justice Department ?
Mr. Gray. Traditionally over the years this is the way these cases
have been handled that are referred by committees of the Congress
to the Department. They are studied by the attorneys there and then
the attorneys direct the investigating arm to do certain things.
Senator Tunney. And they closely circumscribe the nature of the
investigation ?
Mr. Gray. I don't know that I could agree to that kind of a char-
acterization, because they are developing the case and I have no idea
at this point in time as to what is going to turn out to be the full in-
vestigative thrust of it.
Senator Tunney. If we can believe the Chicago Sun Times story,
apparently their direction of the case has omitted interviews with
some of the major witnesses who testified before this committee and
who were directly involved in conflicting testimony under oath. If this
report is accurate, it would seem that the investigation so far is clearly
circumscribed in such a way that none of the principals are going to
be embarrassed or going to be investigated. I hope that would not be
the continuing policy, if it is the policy now.
698
On Monday of this week the Commerce Committee of the House of
Representatives released a TO-paae SEC summary of the report of
ITT materials buried somewhere in the Justice Department, I assume
that this SEC document has been in the Justice Department for a
lono- time ; is this true ?
Mr. Gray. Senator, I don't know about those documents at all. I
have never seen them and I do not know where they are in the Justice
Department. I would have to assume they are in the Justice Depart-
ment. I would just have to assume they are in the Criminal Division
hut that would be an outright assumption.
Senator Tunney. They were not there wlicn you were with the
Justice Department?
Mr. Gray. I don't recall that they were or weren't or if they came
over when I was there. The only thino; that I know is that I have
never seen those documents and I do not know where they are located.
Senator Tunney. Nor the summary ?
Mr. Gray. No, sir.
Senator Tunney. Have you made any attempt to see the summary
since the news stories broke in Jack Anderson's column over the
weekend ?
jNIr. Gray. No, sir, because T don't really view that as my function
as the Acting Director of the FBI. I don't have that kind of authority.
It isn't something that just occurs to me to do.
Senator Tunney. Well, if you can believe the reported stories, that
would indicate that somebody was lying, doesn't it ?
Mv. Gray. I haven't read the story. I really ha^•e not read the story
that you are referring to, this particular column.
Senator Tunney. Did you read the news story in the Wall Street
Journal ?
jNIr. Gray. No, sir.
Senator Tunney. The Wall Street Journal on Monday of this week
indicated that there is a very substantial possibility that Mr. John
INIitchell perjured himself before this committee. Do you think that
that is relevant to the kind of investigation that you are now
conducting ?
Mv. Gray. Senator, I cannot comment on that. You know, the news-
paper Avrites a story and whether it is relevant or isn't relevant, I am
not in a position as Acting Director of the FBI to make that comment.
Senator Tunney. Let me read from the story :
In hearings before the Senate Judiciary Committee last April, Mr. Mitchell
reiieatedly testified that his only discussions of antitrust matters with President
Nixon and otlier high Government officials related to "antitrust policy'' and
were held "at the beginning of the administration." He also said, "The Pre.sident
has never talked to me about any antitrust case tliat was in the Department."
Further the summary say?. INIr. Nixon "l)elieved that mergers were good.
Mitchell apparently said that ITT had not been sued [on the ground that] bigness
is bad.'" (Mr. McLaren was well known for his belief that some huge conglom-
erates should be attacked simply because of their size — that bigness alone is
bad.)
In that same memo attached to the thank-yon letter to Mr. Agnew, Mr. Oerrity
relates some details of a meeting between Harold Geneen, president of ITT. and
699
Attorney General Mitchell. "It indicates that Mitchell told Geneen that Nixon
was not opposed to the merger" of ITT and Hartford, according to the summary.
Now if you can believe the summary prepared by tlie SEC
of the documents that they had available to them it would appear
that ]Mr. INIitchell had talked to the President about the merger,
and that when he came before this committee under oath and said that
he had not talked with the President, that he was not telling the truth.
I am not saying that the summary is accurate. We do know Mr.
IVIitchell testified before this committee that he had not had conversa-
tion with the President. That much we do know.
It would seem to me that if the FBI is conducting an investigation
of possible perjury this article in the Wall Street Journal would give
you a road map as to how to proceed.
jNIr. Gray. I think it may be that if it is a road map, it may be a
road map for the Department of Justice, Senator Tunney, because
that is not our function. It is a question we have to resolve, who is
doing what for whom, and the Department of Justice in these cases
directs us.
It is just an article that I have no comment on.
Senator Tunney. It is somewhat disturbing to me that a news-
paper reporter could in his or in her private investigation be ahead of
the FBI in a matter which you had before you since December 5.
What I am trying to get at is what kind of investigation is being
done.
Here we had a unanimous vote by the Committee on the Judiciary
of the U.S. Senate to refer the hearings on the ITT-Kleindienst mat-
ter to the Department of Justice for an investigation of possible
perjury. This has been referred to the FBI for the investigation. It
appears that a newspaper reporter is ahead of the FBI. I find that
quite disturbing, frankly. There are some Avho could say that it rep-
resents a cover-up.
Mv. Chairman, I would like to include the Chicago Sun Times
article and the Wall Street Journal article in the record.
The Chairman. So ordered.
[The articles referred to follow :]
[Prom the Wall Street Journal, Mar. 19, 1973]
ITT Saga (Coxt.) — Agnew. Connally, Stans Linked to ITT Effort in the
Hartford Case : Secret Documents Disclose Intervention by Officials ;
Peterson Is Also Named — "Nixon Not Opposed" to Plan
(By Priscilla S. Meyer, Staff Reporter of the Wall Street .Journal)
Washington. — An internal working paper of tlie Securities and Exchange
Commission indicates that several key Nixon administration officials were instru-
mental in helping International Telephone & Telegraph Corp. reach its contro-
versial 1971 antitrust settlement with the .lustice Department.
The officials include Vice President Spiro Agnew, former Treasury Secretary
John Connally, former Commerce Secretary Maurice Stans and former Com-
merce Secretary Peter Peterson, who was on the White House staff when the
settlement was in the works.
The settlement allowed ITT to retain the huge Hartford Fire Insurance Co. in
exchange for other divestitures.
In addition, the SEC working paper indicates that former Attorney General
.John Mitchell discussed the ITT-Hartford Fire relationship with President
Nixon, which tends to contradict congressional testimony by Mr. Mitchell that
700
he had never talked about the ITT case with the President, only about general
antitrust policy.
These and other insights into adniinistration-ITT relations were revealed in a
confidential SEC staff summary of ITT documents — mainly letters and internal
memos — that the SEC had subpoenaed during its two-year investigation of the
company. The documents themselves— 34 boxes full — are currently in the pos-
session of the Justice Department.
MR. AGNEW'S NAME COMES UP
One thing the summary of the ITT documents makes clear: ITT mounted a
major eilort, with the help of administration officials, to pressure Richard Mc-
Laren, then assistant attorney general in charge of the antitrust division, into
backing down. Mr. McLaren had brought three antitrust suits against ITT and
had solidly refused to settle out of court unless ITT agreed to divest Hartford
Fire.
That ITT effort began, the SEC summary indicates, with the help of Vice
President Agnew, whose name hasn't previously been associated with the ITT
controversy. The summary refers to a letter dated Aug. 7, 1970, to Mr. Agnew
from Edward J. Gerrity, senior vice president of ITT, thanking Mr. Agnew in
connection with a memo that was attached to the letter. That memo, again ac-
cording to the summary, '"outlines a meeting that had accurred on the previous
Tuesday with McLaren (Agnew)."
It's unclear what's meant by the phrase "McLaren (Agnew)." And neither the
summary nor, pre.sumably. the ITT documents answer the obvious questions : Did
Mr. Agnew set up the meeting, and did he participate in it? The summary indi-
cates only that Mr. Agnew was thanked for the meeting.
Regarding the meeting itself, Mr. Gerrity's letter, according to the summary,
points out to Mr. Agnew "that McLaren seems more responsive to Senator Hart
and Congressman Celler rather than to the administration." Sen. Hart (D. Mich.)
and Rep. Celler (D. N.Y. ) (who was defeated in 1972) have long been persistent
critics of the administration.
ROLE OF MR. MITCHELL
In hearings before the Senate Judiciary Committee last April, ]\Ir. Mitchell
repeatedly testified that his only discussion of antitrust matters with President
Nixon and other high government officials related to "antitrust policy" and were
held "at the beginning of the administration." He also said, "The President has
never talked to me about any antitrust case that was in the department."
Further, the summary says, Mr. Nixon "believed that mergers were good. Mitch-
ell apparently said that ITT had not been sued (on ground that) bigness is
bad." (Ml-. McLaren was well known for his belief that some huge conglomerates
should be attacked simply because of their size — that bigness is bad.)
In that same memo attached to the thank-you letter to Mr. Agnew, Mr. Garrity
relates some details of a meeting between Harold Geneen. president of ITT. and
Attorney General Mitchell. "It indicates that Mitchell told Geneen that Nixon was
not opposed to the merger" of ITT and Hartford, according to the summary.
In another apparent instance of high administration involvement in ITT affairs,
the SEC summary refers to a meeting between then-Commerce Secretary Stans
and John Ryan, a Washington lawyer who was described in congressional testi-
mony as a "listening post" for ITT. The reference is to an Aug. 24, 1970, memo
from Mr. Ryan to William R. Merriam. vice president and director of Washing-
ton relations for ITT, de.scribing the Ryan-Stans session.
Here's how the SEC sums up that memo : "There is an indication that Klein-
dienst must 'follow through' and that this 'may be the break' that ITT is looking
for. There is a rhetorical question asked, 'How will McLaren react, or how good a
Republican is IVIcLaren?" "Follow through" apparently means to follow through
on behalf of ITT and put pressure on Mr. McLaren, although this isn't made
clear in the summary.
Richard Kleindienst, who is currently Attorney General, was technically in
charge of the Justice Department while the ITT settlement was being negoti-
ated because Mr. Mitchell had disqualified himself. The Senate Judiciary Com-
mittee hearings were called to explore this role prior to his confirmation as
Attorney General.
701
Mr. Ryan's memo to ITT tends to conflict with his testimony before the Sen-ite
hearings when he was questioned about his role in bringing about the ITT
settlement.
He was asked by Sen. Hart : "Did you express your concern about antitrust
to anyone in the Wliite House?"
Mr. Ryan : '"No sir, not that I recall."
Sen. Hart : "To anyone in the Executive Branch, in addition to the Justice
Department?"
Mr. Ryan: "That would be difficult to answer, sir. Over a period of time I
would have probably, given the opportunity and the circumstances, made an
attempt to talk, but I can think of no specific times or gentlemen that I would
have talked to."
Although it isn't clear what the Ryan memo meant by the phrase, "may be
the break," a mouth or so after the Ryan-Stans meeting attorneys for ITT began
another round of proposals to Mr. McLaren to settle the antitrust suits. Ulti-
mately, Mr. McLaren agreed to meet with ITT representatives and Mr. Klein-
dienst on April 29, 1971, eight months after the "McLaren (Agnew)" meeting, to
listen to a full presentation of the negative impact divesting Hartford Fire would
have on ITT.
Meanwhile, Mr. Kleindienst asked Solicitor General Erwin Griswold if he
would seek an extension of a deadline for filing an appeal of the case with the
Supreme Court. ITT wanted such an extension very badly. If no extension were
granted Mr. McLaren would surely take his case to the high court immediately.
But the granting of an extension would give ITT more time to try to dissuade
the government from going to the high court. As it turned out, Mr. Griswold did
seek and obtain the extension on April 20, though it was nine days past the usual
deadline for seeking such delays. And, of course, the case then never did go to
the high court.
An April 27 letter to then-Treasury Secretary Connally from Mr. Merriam indi-
cated, according to the SEC summary, that Mr. Merriam and Mr. Geueen were
certain that Peter Peterson of the White House staff and Mr. Connally were
"instrumental in the delay" (The word "delay" apparently refers to the deadline
extension, the summary reports). The letter also advised Mr. Connally of a meet-
ing between Mr. Peterson and Mr. Geneen on April 16.
The SEC summary refers to a letter dated April 30 to Mr. Peterson apparently
from ITT. Attached to the letter was a copy of the extension of time application
filed by Mr. Griswold. "Indication is that the delay was in part due to action of
the administration," the summary says.
The summary of documents was prepared by Stanley Sporkin, the SEC's
deputy director for enforcement, and his staff. And it apparently was retained
when the SEC suddenly shipped all 34 cartons of files from its ITT investigation
over to the Justice Department early last October. In mid-December the SEC
supplied a copy of the summary to the House Commerce subcommittee on investi-
gations, chaired by Rep. Harley Staggers, who also heads the House Commerce
Committee.
The Investigative subcommittee has said it would make the summary public
today if the SEC or Justice Department can't give "clear and compelling reasons"
why the documents shouldn't be released.
The 34 cartons of documents were shipped to the Justice Department as part
of an investigation into perjury and obstruction of justice, according to the SEC.
But Mr. Staggers has charged that they were moved by the SEC to avoid con-
gressional requests.
None of the officials and former officials of the government who are named in
the summary could be reached for comment by The Wall Street Journal over the
weekend, although the Associated Press quoted columnist Jack Anderson as say-
ing that former Attorney General Mitchell repeated the denials he had made
under oath. ITT's Mr. Gerrity, who wrote the letter to Vice President Agnew in
1970, yesterday declined to comment on the documents because he hadn't seen
the summary. "Those documents are so old," he added.
Mr. Gerrity did say, however, that he and Vice President Agnew had been
"personal friends for a long time," ever .since they "got to know each other
well" while in the Army together.
91-331 — 73 — —45
702
[From the Chicago Sun-Times, Mar. 22, 1973]
ITT Probe Avoids Mitchell, Nixon Aides
(By Morion Kondracke, Sun-Times Bureau)
Washington. — Tlie FBI's investigation of possible perjury at last year's
Senate probe of the International Telephone & Telegraph Corp. is being steered
clear of present and former Nixon administration officials. The Sun-Times learned
Wednesday.
Orders from the Justice Department to the FBI on whom to interview^ and
what leads to pursue are calculated to insure no administration officials become
subjects of investigation, reliable sources said.
The FBI probe appears especially directed to slide past former Atty. Gen.
John N. Mitchell, who refused in a telephone interview to say whether he has
been contacted by the FBI in connection with the perjury probe.
Acting FBI director L. Patrick Gray III told the Senate Judiciary Committee
two weeks ago that only four interviews remained to be conducted before the
FBI's investigation was completed, but The Sun-Times has identified six poten-
tially important witnesses who had not been contacted as of Wednesday
afternoon.
They are ITT's president. Harold S. Gencen : ITT's general counsel. Howard
Aibel ; California Lt. Gov. Ed Reinecke ; former White House aide and convicted
Watergate bugger E. Howard Hunt; Hugh Sloan, Jr., the former treasurer of
President Nixon's re-election campaign, and Brit Plume, whose I'eporting origi-
nally sparked the Senate ITT probe.
Hume, a former associate of cohunnist Jack Anderson, uncovered a memo last
year purportedly written by ITT lobbyist Dita D. Beard involving the Justice
Department dropped anti-trust action against ITT in return for a $100,000
pledge to support the Republican National Convention.
The Senate Judiciary Committee conducted intensive hearings on the allega-
tion last March and April as it considered the fitness of Acting Atty. Gen.
Richard G. Kleindienst to be attorney general. Almost in exact parallel, the
same committee is now inquiring into the Watergate bugging case as part of its
consideration of Gray's nomination to be permanent FBI director.
After its ITT prol>e. the judiciary committee on last June 30 referred its
hearing record to the Justice Department for investigation of possible perjury,
suborning of perjury and obstruction of justice. Gray has testified that the
Justice Department referred the case to the FBI on Dec. 5.
Among the direct conflicts in testimony leading to the referral were these,
which a Sun-Times investigation indicates have not been completely probed
by the FBI :
(1) Hume's assertion that Mrs. Beard admitted authorship of the original
memo, versus Mrs. Beard's denial of authorship and denunciation of the memo
as a fraud.
A Judiciary subcommittee began interviewing Mrs. Beard early last year in
Denver, but she collapsed with an apparent heart seizure, Hume has not been
contacted at all.
(2) Mrs. Beard's delay of more than a month last year before commenting
on the memo, versus her eventual strong denunciation of it. The denunciation
followed a visit from Hunt, who was wearing a disguise.
Gray has testified Hunt was never questioned about his visit. Reportedly.
Hunt was assigned to visit Mrs. Beard by White House aide Charles Colson. It
could not be determined whether the FBI has contacted Colson.
(3) Purported assertions by Mrs. Beard that Mitchell was sympathetic to
ITT's case during a Kentucky Derby party at Gov. Louie Nunn's mansion in
1971, versus Nunn's and Mitchell's testimony that Mitchell rebuffed ^Mrs. Beard's
attempt to lobby on ITT's behalf, Nunn said in a telephone interview that
the FBI has not contacted him.
(4) Mitchell's assertion that, in a meeting with Geneen in August, 1070, the
two men discussed only general anti-trust policy, versus the fact ITT was in-
volved in three of the four major antitrust cases then pending in the department.
The possibility of conflict in testimony increased this week with publication
of summaries of ITT documents obtained by the Securities and Exchange Com-
mission indicating Mitchell nnd Geneen did discuss ITT's cases and also Presi-
dent Xixon's opinion about them, which Mitchell also denied discussing.
703
The fact tliat the FBI has not contacted Geneen ahout the meeting was learned
"Wednesday from Aibel, ITT's toj) legal officer, who said he too had not been
contacted.
^klitchell, in a telephone interview, denied he discvissed ITT's case with either
Geneen or the President.
However, at last year's hearings, ITT A'ice President Edward J. Gerrity said
Geneen's plan in seeing Mitchell had been to reverse Justice Department policy
on ITT. Gerrity refused to respond to a request for an interview on whether he
has been contacted by the FBI.
(5) Mitchell's denial last March — repeated Wednesday — that he had any "re-
election responsibilities" or knowledge of campaign finances, versus his later
assumption of directorship of the re-election campaign. The Wa.shington Po.st has
reported that Mitchell had control of a secret campaign intelligence fund even
before officially taking command of the campaign.
One person who presttmably could claril^- whether Mitchell did or did not have
control of campaign funds or knowledge of campaign activities is Sloan, who was
Nixon campaign treasurer. He said in an interview, however, that he has not been
contacted by the FBI. He would not say whether Mitchell's testimony was
accurate or not.
((j) Mitchell's assertions of ignorance about campaign finance, versus Cali-
fornia Lt. Gov. Reinecke's statement that he briefed Mitchell about convention
finances as early as May, 1971. When he learned of Mitchell's version of events,
Reinecke hastily changed his story and said the briefing took place in September
of I'.ITI, but that Mitchell probably forgot about it because details were already
public.
Reinecke"s press secretary. I'hil Jordan, said he asked Reinecke at The Sun-
Times' request if the FBI had interviewed him and "the answer is 'no'."'
Gray denied )>efore the Senate that the FP>I"s probe was in any way limited or
directed away from "certain individuals." He said his perjury probe could be
characterized as a "full court press . . . within the scope of the memoranda and
instructions from the Department of Justice."'
It was learned from relial)le sources the referral memos from Justice to the FBI
were designed to direct investigation away from administration officials.
It could not be determined who was telling Justice in what directions to shunt
the FBI.
Experienced federal investigators .said they had never heard of a case in which
it would be possible for an FBI director to say — as Gray did two weeks ago —
that only four interviews remained to be completed.
Senator TrxxF.Y. I have not seen the investigation but it looks as
thoiioli the major Avitnesses in the ITT investigation have not been
interviewed. One wonders what is going to happen with this investi-
gation. Tlie Senate committee gave 30 days. Perhaps that was too
short a period of time to conduct the investigation, but here many
months have gone by and still the principals have not been inter-
viewed by the FBI. I find that incredible.
As a result of the articles do you think you can do anything about it
now ?
]\Ir. Gr.\t. I don't think it is my function to do anything about it
now. Senator Tunney. I believe sincerely that these questions you are
addressing to me should be addressed to the Department of Justice.
Senator Tunxet. Have you spoken Avith the Department that you
feel thev are hamstrinoinff vou in vour investigation, the FBI investi-
gation ?
;Mr. Gr.vt. Xo. I have not said that in the Department yet. I am
trving to stav within my instructions and still trying to be res]-»onsive
to you. but I cannot discuss the details of this investigation. It is an
onrroiuir investigation. Senator, and it comes under those prohibitions.
Senator Tfxxet. I understand the problem that you are faced with
in answering questions of a Senator in this type of a hearing as those
questions relate to an ongoing investigation. But what concerns me
704
is that this investigation lias been ongoing for some time and it ap-
pears to be quiescent in the extreme. It seems to be getting a little moss
around it. We don't have, yet, principals being interviewed, if you can
believe allegations that have been made in the Chicago Sun Times. I
think that these questions are most relevant to the consideration of
your qualifications, quite honestly. I feel if the FBI is asked to con-
duct an investigation of this kind that it ought to be able to conduct
it in an unfettered way, and if it feels the investigation is being too
carefully circumscribed in order to protect people, the Director of the
FBI ought to say to the men who are responsible for drawing up the
game plan — Mr. Shapiro if it is Mr. Shapiro — that you don't like the
game plan because it is making it impossible for you to do the job
that you have been charged with.
Mr. Gray. I don't think we have reached that point where it is im-
possible for me to do the job because this is the building of a logical,
factual evidentiary pattern, sir.
Senator Tunney. What about the 34 cartons of documents? Is the
FBI looking at them as a part of the investigation?
Mr. Gray. Those are the SEC documents ?
Senator Tunney. Yes.
Mr. Gray. Xo. sir, we do not have those documents.
Senator Tuxxey. Can you explain why you are not looking at them ?
]Mr. Gray. Senator, the only thing I can say to you on this is that
this matter was referred by the Committee on the Judiciary of the
U.S. Senate to the Department of Justice. The Department of Justice
has the transcript and the documents and they are the fellows who
have to go over this and determine where the probable violations lie,
if any, and then tell us to go in and investigate.
Senator Tunxey. I see. But it is rather interesting that we now have,
from the House Commerce Committee, an SEC summary which seems
to indicate perjury on the part of some. We don't know when that
summary was made available to the Justice Department. Presumably
it was made available at the same time that the cartons of material
were made available. We don't know. We do know that a reading of
the transcript of the Judiciary Committee hearing on Mr. Kleindienst,
comparing it witli the summary of the SEC, would seem to indicate
that Mr. John ^Mitchell perjured himself. Yet you have not, apj^ar-
ently, been asked to study those SEC documents and compare them
with the transcripts of the record.
Mr. Gray. Senator Tunney, perhaps the only comment I could make
is that someone else is making that com]:)arison, maybe lawyers are
making that comparison, but I really don't know that to be a fact.
Senator Tux'xey. So we can say that your investigation is only a
partial investigation, so far as the SEC documents are concerned ? You
have not been asked to go into those documents and compare them with
the transcripts ?
INIr. Gray. I don't know that I would accept that characterization.
Senator. This is a very voluminous transcript and apparently that
SEC file is very voluminous. I have to assume that the attorneys
in the Criminal Division are working on this, it is building graduallj'.
But beyond that, I would just not have any comment or knowledge.
Senator Tuxxey. Perhaps I am guilty of a degree of committee
pride when I say that I believe it to be a very seiious matter, when I
say that I believe it to be a very grievious matter for a person to come
before this committee and perjure himself. When the committee di-
705
rects attention to a possible charge of perjury it is a very serious mat-
ter. If we can believe press accounts, so far the investig-ation has
•omitted interviews Avith the main principals in the hearing that we re-
ferred to the Department. If we read the SEC summary and compare
it with the statements that Mr. Mitchell made before this committee,
it is prima facie evidence of perjury. I think it is a matter of the ut-
most magnitude and that the investigation should be proceeding faster
than it has.
]Mr. Gray. Senator Tunnev. if I mav, the onlv comment that I could
make on that is that the FBI is not in any case making a determina-
tion whether in a transcript of a hearing perjury may or may not have
■occurred. This is a determination that is arrived at by lawyers and
then we are told where to go to investigate and what in general to in-
f|uire into.
Senator Tunney. I understand that. But it does seem to me that if
the FBI is to conduct an investigation it ought to be able to conduct
the kind of investigation it feels is appropriate. So far, if the FBI
is not looking at the documents, and — if we can believe the Sun-Times
story — many of the principals have not been interviewed, the investi-
gation is incomplete in the extreme.
]Mr. Gray. Well, Senator, the only thing, once again, that I can say is
that this has been a longstanding policy in both the Department and
the FBI.
Senator Tunxey. Mr. Gray, this committee heard from several wit-
nesses in the past 2 weeks and one of them was a reporter, I^s Whitten,
who has testified that you told this committee a grave untruth. I be-
lieve it would be useful for the committee for you to comment on Mr.
Whitten 's testimony. I would like to read an excerpt from that testi-
mony as follows :
Mr. Chaimiau, I have only learned this morning of a grave untruth told to
this committee by Mr. Gray. Mr. Gray, as I noted above, .swore under oath, "We
have checked with everyone at the Bureau of Indian AlTair.s that we could check
with, and not one of them said that they had any such appointment with Mr.
Adams."
This morning I was able to speak directly with Mr. Creedon with the permis-
sion of Mr. C. R. Anderson, who is the regular spokesman for their office.
Despite what Mr. Gray swore — that "not one" had confirmed Mr. Adams'
crucial appointment — ]Mr. Creedon told me that two of Mr. Gray's agents spoke
with him the day after our arrest. Mr. Creedon told me that he forthrightly
confirmed to the FBI agents that Mr. Adams indeed had an appointment with him
-at the BIA at 10 a.m. on the morning of the arrest.
This, of course, flatly contradicts what Mr. Gray told you under oath.
Moreover, Mr. Creedon told me — ^though he did not tell the FBI this detail —
that he had cleared Adams through the security guard at BIA for the appoint-
ment. This, of course, should show up on the BIA's security records. Didn't the
TBI make this fundamental check? Surely, the security records and security
personnel at BIA were among "everyone at the Bureau of Indian Affairs that we
■could check with."
I am reaclino- from the transcript.
"Sir. Gray. I recall that, and I recall what I said. I recall the matter
•of BIA officials. I was addressing myself to Bureau of Indian Affairs
officials and I think I mentioned that man Mr. Oxendine. It is true,
and I knew at the time, that :Mr. Adams was to have an appointment
with :Mr. Creedon, but Mr. Creedon is not a BIA official. He is an m-
vestigator for a congressional committee, and he was to investigate
the break-in at the BIA. He had no appointment at all regarding any
delivery of any materials.
706
Senator Tunney. Did you know that tliere had been contact with
Mr. Creedon ?
Mr. Gray. Yes, sir. I just said I knew at the time that Mr. Creedon
was not a Bureau of Indian Affairs official.
Senator Titxney. He was working with the Bureau of Indian
Affairs, was he not ?
]Mr. Gray. He is an investigator for a congressional committee, and
his office down there is temporarily to conduct an investigation into
the break-in.
Senator Tuxney. "Was he working with the Bureau, and was his
knowledge such knowledge that could be attributed to the Bureau if
he had been asked further questions to determine whether or not he
had talked to Bureau officials ?
INIr. Gray. Xo. sir. because it was clearly my understanding that he
is there as a House investigator.
Senator Tunxey. I wonder why you did iiot. if you knew that
Mr. Creedon had been notified, why you did not mention that to the
committee?
]Mr. Gray. Because I very carefully checked what his appointment
had to do with and it didn't have anything to do with the return of
documents, only with his investigation into the sacking of the Bureau
of Indian Affairs.
Senator Tuxxey. And your agents spoke to ]Mr. Creedon ?
Mr. Gray. Yes, sir.
Senator Tuxxey. I don't want to make any big point of it, but in
his testimony IMr. Whitten said that :
Mr. Creeden told ine — though he did not tell the FBI this detail — ^that he had
cleared Adams with the security guard at BIA for the appointment. This, of
course, should show up on the BIA's security records. Didn't the FBI make this
fundamental check? Surely, the security records and security personnel at BIA
were among "everyone at the Bureau of Indian Affairs that we could check
with."
Mr. Gray. "\Ve didn't have to make that check because we knew of
the appointment with ]Mr. Creedon. I didn't consider him a Bureau
of Indian Affairs official and I told the committee what we had done
and I even mentioned the name of INIr. Oxendine who would be the
closest person related to this kind of a thing.
Senator Tuxxey. How about the security guard ?
Mr. Gray. I do not know if we checkecl with the security guards
themselves, sir.
Senator Tuxxey. INIr. Gray, this week's Time magazine continues
its account of these confirmation hearings. The article contains some
material which I am sure you will want the opportunity to respond
to. In all fairness, I feel that in some places it does not present the
position that you have taken in these hearings.
Some of the charoes implicit in the article are severe ones. I would
like to raise some of the points in the article at this time. At the outset
I would like you to comment on what I believe to be one very important
point made in that article, one I would hope this committee would be
able to consider in greater depth. I quote :
The I'BI after J. Edgar Hoover is at a crossroads, and the national interest is
clear : a balance must be found between a police power that is largely unchecked
and one that swings pr»jjudicially with each political shift in the Wlaite House.
707
I believe that we would all aoree witli that statement and I hope
that these sessions will help serve that interest.
At pages 151 and 152 of these hearings, Mr. Gray, you in March
testified as to your involvement in the 1968 Presidential campaign,
which you claimed was minimal. Your testimony was as follows :
In 1968, I met with Mr. Nixon in New York in liis office in January, spoke
with him, and just talked about 20 minutes in general terms, and told him
that I hoped that he was going to run for the Presidency. Later in 1968, I
wrote a letter for the candidate's signature on the Small Business Investment
Company industry, setting forth his position in response to questions that that
industry had asked him. I was asked to do so because at that time I was a
member of the board of governors of the National Association of Small Business
Investment Companies. I was not asked to participate in the campaign in 1968,
and I did not. I stayed right in my law office and practiced law and wrote this
letter.
Senator Tunney. The Time article says that when President Nixon
ran for the Presidency in 1908, you helped gather information on the
strategy and organization of Xew York Governor Nelson Rockefeller,
one of Nixon's opponents for the nomination. Is that true ?
Mr. Gray. No, sir ; it is not.
Senator Tuxney. The article also says that Assistant Attorney
General Henry Petersen ''persuaded Gray at first not to have the FBI
look into the activities of a California lawyer, Donald Segretti. who
had been named in news accounts as having been hired to disrupt and
spy on the campaign of Nixon's potential Democratic opponents."' Is
that true ?
Mr. Gray. No.
Senator Tunney. One other point, JNIr. Gray, especially interested
me in the Time article. It is more a matter of policy than of your
qualifications but I would be interested in your view on the subject.
The article makes this statement :
He [Hoover] was the lone dissenter when representatives of the CIA, the
National Security Agency and the Defense Intelligence Agency urged that agents
be allowed to expand surveillance to break in or otherwise "surreptitiously"
enter the residences of suspects and examine personal papers or other documents.
The White House approved the tactic and ordered its use but Hoover continued
to protest — and the order was finally abandoned at the suggestion of Attorney
General John Mitchell.
Senator Hruska. Can we suspend? There is a vote on the Senate
floor.
[A recess was taken.]
Senator Tuxney. The chairman has asked that we continue the
hearing until the next vote, which will probably be very soon.
I was reading from Time magazine tliat Hoover was the lone dis-
senter when representatives of the CIA. the National Security Agency
and the Defense Intelligence Agency urged that agents be allowed to
expand surveillance and the practice was finally abandoned. Do you
know whether that practice has been suggested again ?
]Mr. Gray. No, sir.
Senator Ttjxxey. That has not been suggested ?
^Ir. Gray. No, sir.
Senator Tuxxey. What is your view as to the advisability of such
a practice ?
708
j\Ir. Gray. If I understand the practice, that certamly is in my way
of thinking, breaking- and entering, a trespassing, and I jnst don't
think that people who are law enforcement officials should be engaging
in that kinci of activity.
Senator Tunxey. I am glad to hear it put that way.
Mr. Gray, you supplied for the record a statement on j\Iarch 7, 1972.
It appears on page 340. Let me read it :
Mr. Gray. I have checked, Senator Byrd, and have learned that by memo-
randum dated 12/5/72, Deputy Attorney General Erickson requested that the
FBI interview Mrs. Dita Beard and a number of officials and employees of Inter-
national Telephone and Telegraph (ITT) to develop facts for the Department's
t'onsideration of a possible Pei\iiiry violation involving con.flicting testimony at
the hearings of this Committee which was inquiring into the ITT Hartford Fire
Insurance merger. The memorandum from ]Mr. Erickson also requested that we
interview several of the same people concerning a possible Obstruction of Justice
growing out of an inquiry between August 1971 and October 1972, conducted by
the Securities and Exchange Commission looking into alleged "insider" trading
of ITT stock by corporate officials. The Obstruction of Justice primarily involved
alleged destruction of ITT files and alleged withholding of other documentary
material from the Securities and Exchange Commission which had subpoenaed
tliem. Our investigation is virtually completed and four reports have been fur-
nished to the Department. We have about four more interviews to conduct but
two of these people are out of the United States at this time.
Now, just two points there.
INIr. Gray. Yes, sir.
Senator Tunney. One,. I am led to believe by this answer that your
investigation is almost wrapped up.
]\[r. Gray. At that pohit in time. As I tried to describe, hoAvever —
maybe I am not making myself clear, but I am trying to — when these
reports go in to the Department they are analyzed and then we get
additional requests to do additional things. You know, I am trying to
follow my instructions and trying to be helpful to you, but let me just
say that it isn't a closed book by any manner of means.
Senator Tuxxey. So it would be fair to say that the investigation
is not virtually completed at this point?
Mr. Gray. It was as of that time, but additional things have hap-
pened.
Senator Tun^ney. And I assume you cannot tell us what things have
happened?
^Ir. Gray. That is correct, sir, I have to respectfully decline, Senator
Tunney.
Senator Tunxey. I can understand that.
Tlie obstruction of justice charged involved alleo-ed destruction of
ITT files and withholding materials from the Securities and Exchange
Commission. I don't know how you could be investigating that unless
you had the SEC files, the cartons that have been brought down to the
Justice Department. Do you ?
Mr. Gray. I would like to refer back. Senator Tunney, to my earlier
answer to that. The attorneys there have to analyze these files and they
would not just deliver to us, I am sure, the box with ^vhatever is in it in
the wav of files, but would direct us in what we were to do in connec-
tion with that particular box.
Senator Tunxey. Have vou supplied a chronology and a complete
list of vour conversations with Mr. Dean ?
Mr. Gray. Yes, sir, I did.
709
If tliose are the ones either yon or Senator Byrd requested, there were
two inserts with regard to the ^Vatergate investigation.
Senator Tunney. Have you supplied a list of other conversations
that you have had with Mr. Dean ?
JMr. Gray. No, sir. I was requested to do that this morning and I
respectfully declined to do that, sir.
Senator Tunney. I am sorry. I did not know that you had already
answered the question.
How about those with Mr. Ehrlichman, has that request been made?
JMr. Gray. No, sir, and I would respectfully decline on the same
grounds.
Senator Tuni^ey. Questions have been asked by other Senators with
respect to your knowledge of the relationship between Mr. Dean and
JMr. Liddy. I have asked Senators and others what they got out of your
answers. I think others are confused, as I am, as to when you first be-
came aware of the relationship. Was it on July 24, 1972, or was it
subsequent to that ?
JMr. Gray. No. I have tried to make that clear. I have said that there
is a teletype summarizing the interview and that teletype was initialed
by me — T should say the note affixed to tliat teletype was initialed by me
on the 24:th day of July, but that note did not indicate anything at all
concerning anv relationship between JMr. Dean and JMr. Liddy. It was
not until much later on when the 302 came that I saw that there was
language in there, as I recall — well, I have already testified to this,
I am Bure.
Senator Tunney. Was that in October ?
JMr. Gray. It was either in September or October.
I think it was probably about the middle of September, between t]ie
middle of September and the 1st of October. But once again that is
testifying from the file. Ri'\ T mncsf resnectfully decline. But I have
tried to clear it up and the words that I remember were that JMr. JMa-
gruder asked for recommendations regarding the Committee to Re-
Elect the President and that he received recommendations from
JMr. Dean and JMr. Krogh.
Senator Tunney. Are you prevented from testifying as to the in-
formation that the FBI acquired from JMr. Dean in the interviews that
they had with JMr. Dean?
JMr. Gray. Yes : because mv instructions are now that these files are
to be made available to the chairman and tlie ranking minority mem-
ber and the chief counsel and a minority counsel, and that I am to
adhere to the traditional rules and n^gulations and policies of the
Department,
Senator Tunney. Did JMr. Dean at any time indicate to you per-
sonally that he had a personal relationship with JMr. Liddy?
JMr." Gray. No, sir.
Senator Tunney. You were, of course, forwarding material to him
on a regular basis after July 1. It became apparent that JMr. Liddy was
one of the prime suspects in a felony. I would assume you must have
discussed this with JMr. Dean, did you not?
JMi'. Gray. No, sir. I made the statement several times in my testi-
mony that we did not discuss the substance of his investigation or the
substance of mine, Ijecause I wanted us to go on our own theories, to go
in our o\rn way and use our ovni resources.
710
Senator Tunney. Mr. Magruder, when he was testifying in open
court on January 24, said :
As I recall, Mr. Liddy came over to the Committee to Re-elect the President
with Mr. Dean who was Counsel to the President on a Friday in December some-
where, either the 9th or 10th. At that time we were in the iiroce.<<s v/here we had
two serious situations that had to be handled on a full-time basis ; one was we
were filing in a primary, fairly complicated law in many state.s, and secondly, the
new election law was on its way through the Congress. We need to get ahold of
what that legislation meant to our campaign. So I asked that John Dean, if he
could find on a full-time hasi.*, that he had been using words on a full-time ba.sis.
and John recommended Mr. Liddy on a Friday. Mr. Liddy began on the following
Monday.
After Mr. Magruder testified to the above he was asked the following
questions and answered as follows :
Do you recall the substance at all as to the conversations involving yourself,
Mr. Liddy and air. Dean?
It was a typical interview situation. We talked about ^Ir. Liddy's background,
our problems with the committee, what our needs were and the usual things we
talked about. I had not met him before that time so we just Ijad a general
discussion.
AVas there any discussion at all with respect to the investigation?
As I recall, either John, myself, not myself, John. ^Ir. Liddy talked about his
FBI background and we did discuss the potential opportunity if we had an
investigation problem, an intelligence-gathering problem, that Mr. Liddy's back-
ground would suit that type of work.
What, if anything, did Mr. Liddy say about that?
I can't recall. He was amenable to that type of activity.
Tou say he came over Monday to the best of your recollection?
To the beest of my recollection he started immediately.
I learned of INIr. INIagruder's testimony after you left the
stand. I called it to the attention of the committee, I believe that
several important questions are stiggested by it. I have seen the
interviews wih Mr. Dean by the FBI on June 27, July 7, and 8, and
the one on Magruder on Jtily 20. At tlie time I read those interviews I
made it clear to the FBI agents that I would not reveal what I read
and I will not.
I do feel, however, that the question of ISIr. Dean's relationship to
this case is very, very important. I feel that unfortunately for you it
is very im]:)ortant to your confirmation. I feel that way because to me
it is clear from the record that Mr. Dean got Mr. Liddy his job and at
the time he got his job there was talk about ]\Ir. Liddy's ability as an
investigator and his ability as an intelligence gatherer. INIr. Dean also
was the one who was the conduit at the "WHiite Plouse for materials
that were supplied by the FBI, confidential materials, and materials
that should have been safeguarded. The questions come up : If you
didn't know of JVIr. Dean's involvement, should you have known ? And
if you should have known, was it proper to give to Mr. Dean those
various files and documents without talking to the President of the
United States?
I have a few questions that I Avould like to ask you about that.
Have you S])oken to the President since this committee requested
unanimously that John "\V. Dean appear before the committee?
Mr. Gray. No, sir ; I have not.
Senator Tunney. When you learned that ISIr. Dean was a friend of
Mr. Liddy. did you speak to the President ?
Mr. Gray. No", sir; because when I saw the language you are talking
about in the FD-302, it didn't ring that kind of bell and I didn't make
711
that kind of jump right awa^^ in my thinkin.g. I treated tliis as a recom-
mendation for an attorney' and nothing more than that. So I did not
go on tlie alert at alL
Senator Tuxxey. When did you first learn that ]SIr. Dean had kept
Mr. Plunt's effects in his office for a week before he turned them OYer
to the FBI ? That ^vas back in June, wasn't it?
Mr, Gray. I think I testified this morning, and I think I have testi-
fied before, that my best recollection of this is that it came up on the
morning of June 27.
Senator Tuxxey. That is when vou learned about it ?
Mv. Gray. Yes.
Senator Tuxxey. Now, did that give you any kind of a signal at all ?
Mr. Gray. Xo, sir; it didn't, because, as I testified, our concern was
the chain of custody.
Senator Tuxxey. I understand that.
]Mr. Gray. Yes. and it didn't because of the fact, Senator, of the
relationship between the Counsel to the President and the President
himself; this man is his Counsel. He is. in his official capacity, con-
ducting an inquiry, and, furthermore, 3'ou would have Presidential
papers involved, so it did not shatter me.
Senator Tuxxey. But you are the President's top cop ?
You are the President's chief investigator?
]Mr. Gray. That is correct.
Senator Tuxxey. Don't you feel that as the President's chief in-
vestigator that, if you were suspicious, and T am not saying that you
Avere and you have indicated you were not. but wouldn't you have a
responsibility, if you were suspicious of the activities of one of the
President's counselors, to go directly to the President and tell him?
Mr. Gray. Yes. if I were suspicious. But those suspicions were not
directed, in my mind, to the extent that I said, "Hey, I've got to do
something about this."
Senator Tuxxey. And when there M-ere press reports regarding Mr.
Segretti?
I put this in context of Dean's holding Hunt's effects for a week, in
■context of the ^Magi'uder interview which yon testified that you learned
about in October.
"\Mien there were press reports that an FBI file which you turned
OA'er to INIr. Dean had been used to brief ]Mr. Segretti, in that context
did that not alert you?
]Mr. Gray. Xo, sir, it didn't. I previously testified as to why not,
and the fact of the matter is that it did not. You know, I testified
earlier there were some things right on the face of that press report
that I knew just couldn't be so.
Senator Tuxxey. Yes, except you also got pretty hot under the col-
lar, you testified.
]Mr. Gray'. Oh, yes. I did.
Tliere is no denying that.
Senator Tuxxey. Were you at all worried about ]Mr. Dean's using
your FBI reports to coach witnesses at the Wliite House ?
]Mr. Gray. Xo. sir. I think you asked me this question before, and
I don't know that he did do that.
Senator Tuxxey. I don't know that he did either, but I am talking
nbout the FBI conducting an independent investigation. The FBI is
712
an institution which has o-rown np to be highly respected by me aiicT
1 am sure by everybody in this room, and we do not want to see the
FBI become an instrumentality that has one form of investigation for
some people and another form for White House Staffs, do we?
IMr. Gray. Xo. I share your sympathies and I express them with
equal vigor, and I have on several occasions, Senator Tunney.
Senator Tuxxey. I am concerned that there would not be any sus-
picion of the coaching tlie witnesses when you have these three inde-
pendent facts which would, it seems to me. or at least should, alert
one to the possibility that the White House Counsel was coaching wit-
nesses. I am not saying lie was. I don.'t know. But it is of concern to
me. I know that INIr. Dean is a friend of yours. But sometimes one
has to be suspicious of one's friends.
Mr. Gray. That is true, Senator Tunne3^ But I would like to invite
your attention to the fact that this was very, very closely held and
we had conducted it with maximum shock effect on witnesses even
before the letterhead memorandum of July 21 was sent to the White
Plouse.
Senator Tuxney. Did you ever discuss with the Attorney General
the problem that you were running into ?
Mr. Gray. Xo. sir, I didn't know that I was ruiuiing into any prob-
lem. I take it that you may be relating it to these three matters.
Senator Tunney. Well, not only that. I am thinking of things
which are unusual, having Mr. Dean sit in when 3^ou interviewed
witnesses, and ask for information that you were at first apparently
reluctant to give. Did you feel that it was not a normal thing to do,
and did you have any discussion with the Attorney General ?
]Mr. Gray. Xo. sir, I didn't because I have to try to make those
decisions down there, at least as many as I can.
That is why I am there as a Bureau Chief and I did make that first
decision, as you will recall, with regard to the June 19 information.
Senator Tunney. At any time did you explain to Mr. Dean what
security measures should be taken with respect to confidential FBI
files?
Mr. Gray. Oh. yes. and he was well aware of them, too. He has been
in the Department of Justice. He is the liaison with the Department
of Justice in his capacity' as Counsel, but ves. we did.
Senator Tunney. Do J'ou ever speak to the President, except at
social affairs ?
Mr. Gray. Customarily it is appropriate for the FBI Director to
speak to the President, but that kind of a relationship has not devel-
oped, and I think maybe the President might have his own good
reasons for not having developed that kind of relationship to this-
point in time. But I do not know that that is so, because I don't know
what the President's thinking is on this. But I feel certain that should
I eventually be confirmed, this kind of a relationship would be
established.
Senator Tunney. As I understand your answer, you do not. then,
talk to the President except on the occasion of social affairs?
Mr. Gray. I cannot remember when the last time was I was at the
White House on a social occasion. That has been some time ago. I do
not know the President's reasons, and the only thing that I can read
into it is that until I am eventually confirmed or voted down, which-
713
ever may be the will of the Senate, that kind of a relationship is not
going to be established. This has just been an assumption. I have
nothing to base this on. This is just me.
Senator Tunney. So, then, as I understand your testimony, the
persons that you speak to in the White House are representatives of
the President, are the staffers, Mr. Dean, IMr. Ehrlichmun, JSIr.
Haldeman ?
Mr. Gray. That is correct, sir, but I think I have testified here that
I have had a meeting with Mr. Fielding and Mr. Sheppard and with
two or three of vour top executives of the Bureau on command control
on terrorism. I did have that meeting.
Senator Tunxey. I personally think you ought to be allowed to
sjDeak to the President.
]Mr. Gray. I am sure that eventually, if I am confirmed, this will
occur, that that kind of a relation will develop.
Senator Tunney. You indicated to Senator Hart that you were put
on the carpet by Mr. Ehrlichman in October regarding presumed FBI
leaks. Why didn't you put Mr. Ehrlichman on the carpet regarding
"^AHiite House leaks ?
Mr. Gray. I think on every occasion I had mentioned the possibilities
existing in many other areas regarding leaks because of the fact that
so many investigators were looking into this matter. I did not just take
these criticisms and these remarks lying down and would contend this
is not a leak that is coming from the FBI. Some of these stories at that
particular time, as well as I remember, just came out and said FBI
agents, and, you know, I just know that this isn't so.
Senator Tunney. Was your judgment on these matters colored be-
cause you were the Acting Director of the FBI ?
Mr. Gray. I don't think so, Senator Tunney. I said throughout all
my press — when newsmen would ask me questions along this line — ^I
Avould say tliis is a position that seeks the man. I am not conducting
a campaign. I refuse to do it. I even refuse to do it today. I have had
people ofier to help me here and I have said no. I have to sit here in
this committee and persuade the U.S. Senators.
Senator Tunney. My concept of the job of Director of the FBI is
that he reports to the President and to the Attorney General, and that
he does not report to political appointees of the White House, and par-
ticularly so when those political appointees are the subject of an inves-
tigation for wrong-doing. I can recognize how your position is con-
siderably compromised, in a waj- if you did not talk to the President.
You were talking to these political appointees. I think that that is an
important problem.
Mr. Gray. Senator, may I say that I did not feel compromised.
Senator Tunney. Well, maybe you didn't feel compromised, and I
am glad to hear that, but it is awfully tough to have a person that is
the embodiment of the President, insofar as you were concerned in
your regular transaction with the White House, be the one that you
have to make an independent judgment regarding, when his name
comes up in an investigation that you are conducting, as a person who
might have leaked documents that are confidential FBI documents
and as a person who was a friend of one of the architects of the
espionage that you investigated. I just think it is a difficult position
714
for a person to be in. Now maybe it wasn't difficult for you but it would
be difficult for me.
Are you suspicious of the relationship that Mr. Dean had witli
INIr. Liddy and with Mr. Segretti now?
Mr. Gray. Well, sir, I think I have testified that in the sum total
of this investigation and. in particular, after we sat down around
the table in my conference room and went through many skull ses-
sions and took many looks at the things we have done throughout
this investigation, that I just have not found things that would
generate those suspicions, Senator Tunney.
Senator Tuxxey. One of the central features in this confirmation
hearing is ]Mr. Dean's testimony. Your confirmation may be injured
by ]Mr. Dean's not testifying. Wouldn't you want Mr. Dean to testify ?
^ Mr. Gray. Senator, that is a decision that has to be made by the
President on a level that I think is far above and beyond mine. This
goes — I think, anyhow — to the doctrine of the separation of powers
among the three great branches of our Government, but I have no
contribution to make to that kind of decision because that is peculiarly
a decision for the President.
I haA^e pointed out that I serve at the pleasure of the President,
that the Federal statute enacted now requires Presidential appoint-
ment and the advice and consent of the Senate. I serve at the pleasure
of the President and that is peculiarly his decision.
Senator Tux^xey. I would like to say in conclusion that I have
seen you before this committee a good many days now, and my judg-
ment as to your confirmation is not going to rest on your integrity.
I think that you are a man of integrity. If I should vote against your
confirmation, it would not be on that basis. It would be on the basis
that I think an FBI Director has got to be independent.
]\Ir. Gray. Thank you. Senator Tunney. I appreciate your remarks.
The Chairmax'. There is a rollcall.
We will adjourn now at the call of the Chair.
[Whereupon, at 4:1.5 p.m., the committee adjourned.]
[The nomination of ;Mr. Gray was subsequently withdrawn by the-
President.]
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